Spence v. U.S.

Decision Date08 April 2009
Docket NumberCase No. CV F 07-0676 LJO DLB.
Citation629 F.Supp.2d 1068
CourtU.S. District Court — Eastern District of California
PartiesJeanine SPENCE, Plaintiff, v. United States of America, Defendant.

Stephen Roy Cornwell, Cornwell and Sample, Fresno, CA, for Plaintiff.

Jason S. Ehrlinspiel, United States Attorney's Office, Sacramento, CA, for Defendant.


LAWRENCE J. O'NEILL, District Judge.


Defendant United States of America ("Government") seeks summary judgment on plaintiff Jeanine Spence's ("Ms. Spence's") negligence and premise liability claims arising from her bicycle fall at a military training facility during a cycling event. The Government seeks to bar Ms. Spence's claims pursuant to her written release, California recreational use immunity, and the doctrine of primary assumption of risk. Ms. Spence responds that disputed issues of material fact bar summary judgment and that the Government advances inapplicable legal theories. This Court considered the Government's summary judgment motion on the record1 and VACATES the April 13, 2009 hearing, pursuant to Local Rule 78-230(h). For the reasons discussed below, this Court GRANTS the Government summary judgment.


On May 14, 2005, Ms. Spence bicycled in the Central Coast Double Century ("CCDC"), a difficult 210-mile recreational bicycling challenge which passes through Fort Hunter Liggett ("FHL"), a Government military training facility in Monterey County. Her bicycle's front wheel fell into a gap in FHL's Nacimiento Bridge, a steel bridge, and Ms. Spence fell over the handlebars and suffered facial and dental injuries. Pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680, Ms. Spence pursues personal injury claims against the Government under theories of negligence, premises liability and negligent inspection.


The CCDC is a grueling one-day recreational ride with more than 13,800 feet of climbing. It starts in Paso Robles, proceeds north on the Pacific Coast Highway, and loops through FHL before returning to Paso Robles. The CCDC is not a race, but rather, using Ms. Spence's words, is "an endurance challenge for cyclists to cycle a long distance over changing terrain on public roads. The challenge is in completing the course ...." In the annual CCDC, 125-160 cyclists participate. Brian Stark ("Mr. Stark"), an experienced cyclist, has organized the CCDC since its 1995 inception and selects the CCDC course, including the portion through FHL. Neither CCDC cyclists nor Mr Stark paid an admission fee to enter or use FHL roads although Mr. Stark was required to pay a fee for cyclists to use a FHL picnic area.

The FHL And Nacimiento Bridge Improvements

FHL comprises 165,000 acres in southern Monterey County and is used for Army Reserve training and general public recreation. Public admission to FHL is free.

The Nacimiento-Fergusson Road leads to the Nacimiento Bridge, where Ms. Spence fell. The Nacimiento-Fergusson Road connects California Highway 101 and the Pacific Coast Highway and is used by civilians and military personnel to commute to work and for recreation.

The Nacimiento Bridge is 256 feet long and 18 feet wide with a deck of plates of open, fitted grating. In 1979, the Nacimiento Bridge was improved, including an extension surfaced with three steel grate plates with what the Government describes as "narrow" gaps between the plates. Ms. Spence describes the "new bridge approach" as "four steel grated panels approximately 10 feet long abutting the edge of the existing wood bridge deck on one end and the roadbed on the other." The Government characterizes the Nacimiento Bridge's steel grate surface as a "hazard ... readily apparent to any cyclist just by seeing the bridge and causes cyclists to be even more vigilant." Ms. Spence notes that the gaps run longitudinally between the plates and range in width from 3/8 inch to 1 ½ inches.

Todd Goolkasian ("Mr. Goolkasian"), Ms. Spence's expert structural and civil engineer, notes in this declaration that after the bridge approach was rebuilt, plans were drawn to replace the Nacimiento Bridge's wood deck with galvanized steel grating. According to Mr. Goolkasian, panels were to be placed with no gaps between them either parallel to the flow of traffic or perpendicular to it. Mr. Goolkasian notes that the bridge was finished with gaps in its approach but not in its remaining section. Mr. Goolkasian opines that repairs to the bridge approach to correct the gaps should have been taken but were not. Mr. Goolkasian construes gaps wider than ½ inch as non-compliant with "laws, regulations, and industry standards"2 and "government policies to encourage bicycle transportation and to foster bicycle safety."3

Nacimiento Bridge Inspection

Pursuant to 23 C.F.R. § 650.311, the Nacimiento Bridge is subject to no less than biannual inspection. Mr. Goolkasian notes that such inspection requires a check for defects in a bridge's deck and approach.

The FHWA inspected the Nacimiento Bridge on June 24, 2004. Ms. Spence attributes Mr. Goolkasian to opine that a proper bridge inspection would have revealed gaps in the bridge approach which did not conform with design drawings and did not comply with legal and regulatory requirements, industry standards, and government policies.4 FHWA Lead Structural Engineer for the Bridge Inspection Office Marcus Miller ("Mr. Miller") rebuts such points in his declaration and notes the inspection's aim is "to ascertain the condition of the bridge and its safety for highway and military motor vehicle traffic. The gaps in the approach span did not constitute a defect in terms of the motor vehicle traffic this bridge was designed to carry."

Pre-CCDC Marking Of The Nacimiento Bridge Approach

As he had with prior CCDCs, on the day prior to the 2005 CCDC, Mr. Stark marked the asphalt leading to the Nacimiento Bride gaps with bright fluorescent orange paint. In his declaration, Mr. Stark states that "marking of potential road hazards with paint is a typical method employed by organized cycling events and cyclists to warn of potential hazards." Mr. Stark expected CCDC cyclists to be able to detect the gaps' potential hazard.

In his declaration, Mr. Stark characterized potential hazard from the gaps in the Nacimiento Bridge as "highly improbable" given "the bright fluorescent markings, the narrowness of the gaps in comparison to the rest of the bridge surface, the fact that the gaps were obvious and the typical vigilance of cyclists." Mr. Stark never filed a complaint with FHL about the gaps, which he likens to "other potential road hazards such as breaks in the road surface, an irregular surface, debris, moisture and potholes."

Mr. Goolkasian opines there was "no adequate or appropriate signage to warn cyclists of the hazard." Mr. Miller responds that in Nacimiento Bridge's absence of a designated bicycle lane/pathway, "no signage requirement for such traffic would apply." Ms. Spence notes that she could not see the bridge surface prior to coming on to it. In his declaration, fellow 2005 CCDC cyclist Peter Ozorio ("Mr. Ozorio") states that after Ms. Spence's mishap, he observed paint symbols of "only a few inches long" just before the bridge but had not seen them when he cycled toward the bridge with Ms. Spence. Mr. Ozorio noted the absence of "other warnings about the hazard."

The Government's CCDC Knowledge

Since the CCDC's 1995 inception, the Government has known that the CCDC passes through FHL and the Nacimiento Bridge but has not organized, sponsored nor supported the CCDC. The Government has had no involvement with the CCDC, including selection or inspection of the CCDC course or determination or marking potential hazards. Mr. Stark declares that the Government "has never professed any expertise in evaluating the safety of the roads and bridges on FHL for cyclists" and has never guaranteed or represented the "suitability or safety of the roads and bridges on FHL for cycling."

Since 1979 improvements to the Nacimiento Bridge, the Government has been aware that three narrow gaps exist between the bridge's steel grate plates. From 1979 to Ms. Spence's May 14, 2005 mishap, no bicycle incidents arose at the Nacimiento Bridge, and the Government received neither notice of personal or property damages involving a bicycle and the Nacimiento Bridge's narrow gaps nor complaints concerning the Nacimiento Bridge's safety for cycling or its narrow gaps. The Government concludes that from 1979 to Ms. Spence's mishap, it lacked "knowledge that the gaps in the Nacimiento Bridge presented a possible hazard to cyclists."

Ms. Spence notes that Derek Chrisman ("Officer Chrisman"), a FHL police officer, observed Mr. Stark spray painting the road leading to the Nacimiento Bridge the day before the 2005 CCDC. Mr. Stark explained to Officer Chrisman that Mr. Stark was marking off "hazards" on the course.

Ms. Spence's Cycling Experience

Ms. Spence started cycling in 2001. In the year prior to the 2005 CCDC, Ms. Spence completed several double century bicycling events, four or five century events, and cycle club and training rides.5 Ms. Spence completed without incident the 2004 CCDC, which covered the same course, including the Nacimiento Bridge, as the 2005 CCDC. The Government characterizes Ms. Spence, at the time of the 2005 CCDC, as "a seasoned cyclist with numerous centuries, double centuries, and training miles on a bicycle to her credit."

Ms. Spence executed and was required to execute a release of liability for each of her recreational cycling events. According to the Government, Ms. Spence realized that she needed to sign a release to participate in each CCDC.


In his declaration, Mr. Stark explains that drafting "is a technique used by cyclist[s] to conserve energy" whereby cyclists "are lined up single file one behind the next." Ms. Spence describes drafting as "a common practice in distance cycling where airflow...

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