Pipe Dream for Expert in Motocross Case

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McCassy v. Superior Court (California – UNPUBLISHED)
(Minor motocross rider injured during practice ride; with the rider unable to recall the incident, her expert speculates that irrigation piping near the track caused her to lose control; the court finds a lack of evidence to support the theory and grants defendant’s motion for summary judgment.)

A 17-year-old female motocross rider was at a motocross track practicing, and she was involved in an incident occurred in which she left the track and struck an embankment. The rider did not remember how the incident occurred, but alleged that she struck a portion of PVC pipe about 10 feet from the racing surface which was part of the track’s irrigation system, causing her to lose control of the motorcycle. She alleged premises liability, and her father and brother, both of whom were present, sued for infliction of emotional distress.

An expert for the plaintiffs asserted that the track increased the normal risk of injury by placing the PVC pipe close to the track and that if a rider lost control and left the track, there was a high probability of striking it. The trial court denied the defendant’s motion for summary judgment based upon primary assumption of the risk, noting that placement of the irrigation system so close to the track was not inherently required for the sport. The defendant petitioned for review, and the Court of Appeal granted the Petition.

At the trial court level an eyewitness has testified that the plaintiff rider had screamed just before leaving the track and that she had heard the throttle stuck wide open. The witness also testified that it did not appear that the motorcycle hit the PVC pipe because the trajectory of the motorcycle did not change as it left the track. The trial court had initially deemed the witness’ testimony as “inadmissible personal opinion.” The Court of Appeal disagreed and concluded that the testimony was admissible testimony based on personal observation.

The Court of Appeal further noted that while the plaintiff’s expert had sufficient credentials to establish his expertise, his opinion that the PVC pipe probably had an impact on the incident and increased the risk of injury was without evidentiary support. The expert had not conducted any tests and made no inspection of the scene of the motorcycle. Therefore, the court concluded that it did not need to conduct an analysis of whether the defendant owed a duty of care with regard to the PVC pipe because it increased the risks inherent in the sport because the evidence before the court did not establish that the PVC pipe was involved in the incident.

NOTE: First, this case is notable because the Court of Appeal granted the defendant’s Petition for Writ of MAndate in order to hear defendant’s appeal of the motion for summary judgment lost at the trial court level. the granting of such Petitions is quite rare. The Court of Appeal obviously felt strongly about the evidentiary issues that the case presented. Although the underlying motion was based upon primary assumption of the risk, this case simply case down to a lack of evidence. Since the plaintiff rider was unable to recall details of the incident, she was unable to contradict the testimony of the only apparent witness to the incident itself. Had the rider been able to testify about what occurred, the motion would have undoubtedly been denied and the factual issues relating to the PVC pipe would have been left for a jury to decide.  It’s also interesting to note that this case did not include arguments relative to a waiver and release agreement.  Either the facility did not obtain minor waiver and release agreements from participants or there were some unstated reasons why the defendant did not feel it would have been enforceable.

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