Blanked Out – Injured Motocross Rider’s Claims Barred By Assumption of Risk (CA)


Storer v. E Street MX, Inc. (California)
(not a published opinion)

The plaintiff was injured while riding his motorcycle on a motocross track operated by the defendants.  After completing two or three laps on the track, the plaintiff “blanked out” and did not recall the incident.  He claimed something hit him, but he did not know what it was.  He filed an action against the defendants for negligence and premises liability.  The defendants filed a motion for summary judgment based upon both primary assumption of risk and the waiver and release document that the plaintiff signed prior to his participation in the motocross activities, and plaintiff filed a motion for leave to file an amended complaint shortly thereafter.

Plaintiff sough to add a new cause of for products liability and also sought to add additional negligence claims relating to defective design, construction, and maintenance of the racetrack, along with a failure to warn him of those defects.   The trial court denied plaintiff’s motion, ruling that the proposed amendment was “prejudicially late” and that it sought to add a “patently frivolous” cause of action for products liability.  Plaintiff had also requested delaying the defendants motion, but the court denied the request.  Thereafter, the trial court granted the defendants’ motion, and the plaintiff appealed.

On appeal, the California Court of Appeal first addressed the application of primary assumption of risk.  Citing a prior California case, the Court explained:

“Motocross is a sport in which people ride motorcycles and perform jumps off of ramps, while in a setting filled with dust and other people on motorcycles. Given the racetrack setting, speed involved, and jumping maneuvers, it follows that coparticipants will fall down, and while down, be struck by other riders whose views are obscured by the blind corners, blind ramps, dust, and/or other riders the plaintiff first argued that there was an issue of materials fact as to whether the waiver and release document he signed was void due to fraud in the execution.”

Citing the same case, the Court further noted that “an owner/operator of a motocross track had a duty to provide a warning system, such as caution flaggers, to alert other riders of a fallen participant on the track.”  The defendants presented evidence that there were four caution flagger on the track on the day of the incident.  Although plaintiff admitted seeing three caution flaggers, and although he testified that there could have been more that he did not see, he alleged that the defendants had provided an insufficient number of flaggers and that they were at the wrong locations.  The Court disagreed, concluding that it was undisputed that the defendants provided a caution flagger warning system.  The Court affirmed the trial court’s ruling that the plaintiff has primarily assumed the risks inherent in motocross activities, including the risk of falling down and being struck by other riders.

Plaintiff had presented declarations from two other riders from the day of the incident and from an expert witness, all expressing opinions that a caution flagger should have been present at the location of the incident, but the trial court had sustained foundation objections to the declarations.  The Court of Appeal held that the trial court had not abused its discretion in sustaining the objections to the declarations.  The other riders failed to adequately establish personal knowledge regarding the location of the accident, and the expert witness had improperly relied on out-of-court statements as independent proof of facts.

The Court next addressed the denial of plaintiff’s motion for leave to file an amended complaint.  Plaintiff contended that during, and shortly after, his deposition he was shown photographs and a video that caused him to realize that the track had been modified and that such modifications could have raised issues about the design, construction, and maintenance of the track.  Plaintiff also argued that the amendment would not have prejudiced the defendants because the statute of limitations had not expired, and the trial was not scheduled to take place for another three months.  However, the Court noted that plaintiff did not offer any explanation for the four-month time lapse between his deposition and the filing of the motion to amend.  The Court also considered that the amendment would have forced the defendants to withdraw or re-draft their motion for summary judgment.  The Court decided that although amendments are generally liberally permitted, plaintiff’s delay in filing the motion was prejudicial.

As to the waiver and release agreement signed by the plaintiff, the Court stated that it did not need to reach the issue because summary judgment was properly granted based upon primary assumption of risk.  However, the Court did caution:

“If [plaintiff] had otherwise shown triable issues of material fact regarding his causes of action for negligence and premises liability, his allegations that [defendant] concealed the release language from him might have been cause for concern. We might also be concerned that [defendant] has an apparent practice of requiring multiple customers to sign a single release page rather than providing each customer with their own release agreement, thereby making it more difficult for any individual customer to negotiate the terms of their individual release agreement.”

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