GROSS NEGLIGENCE IS THE NEW NEGLIGENCE: The Evolution of Assumption of the Risk
(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)
Jeremy K. Robinson – Chair of CaseyGerry’s Motion and Appellate Practice
Not too long ago, I gave a presentation in San Diego as a part of the What’s New in Trial and Tort program. If you were lucky enough to be in attendance, or have reviewed the program’s written materials, you will know that in 2010, there was not a single published case from the California appellate courts or Supreme Court concerning primary assumption of the risk. I was shocked, given that it is one of the favorite topics of discussion with California courts, and one that has resulted in an staggering number of written opinions.
2011 will be different. Already there are at least two cases that address assumption of the risk. One, Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, concerns the application of a signed release (i.e., express assumption of the risk) and primary assumption of the risk to a motorcycle race. The other, Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, involves the interplay of express and implied assumption of the risk to a fatality occurring during an equestrian event. Both cases emanated from Division 2 of the Fourth District Court of Appeal.
From my perspective, the most interesting thing about both cases is that they continue the trend of somewhat mitigating the harshness of express and implied assumption of the risk. Although both cases involved a signed release, the validity of which the court upheld, summary judgment was reversed because there were triable issues of fact as to whether the defendant’s conduct amounted to “gross negligence.” Additionally, the court in each case found that primary assumption of the risk did not apply.
In this column, I will focus on the release issue. Those of you who have battled a waiver and release agreement probably know that a defendant cannot force a plaintiff to waive liability for gross negligence. As the California Supreme Court has stated, “an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751.
In general, to set forth a claim for “gross negligence” the plaintiff must allege extreme conduct on the part of the defendant. Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185‐1186. The conduct alleged must rise to the level of “either a want of even scant care“ or “an extreme departure from the ordinary standard of conduct.” City of Santa Barbara, supra, 41 Cal.4th at p. 754. Also, gross negligence is not an independent cause of action, but in order to argue gross negligence, the plaintiff must include factual allegations that fairly reflect the offending conduct. Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541.
That is all well and good, but until fairly recently, published decisions analyzing the gross negligence standard in the assumption of the risk context have been few and far between. In City of Santa Barbara, the Supreme Court determined that a release purporting to waive liability for gross negligence was void as against public policy, but there was no discussion about whether the facts of that case could amount to gross negligence. That is where Rosencrans and Eriksson come into play.
Rosencrans involved injuries to a motorcycle rider during a motorcross race when he was hit by other competitors after falling off his own bike. The plaintiff alleged that the defendant track operator, failed to provide enough “caution flaggers” (people who warn other participants of fallen racers so that the other riders can avoid them). As such, when the plaintiff fell off his motorcycle, the other racers could not see him and ran into him.
The defendant moved for summary judgment on the basis of a release signed by the plaintiff. Before entering the track facility, all patrons and riders, including the plaintiff, were required to stop their cars at a booth that was staffed by an employee of the defendant. While the patron was in his or her car, the patron paid a fee and signed a release and waiver of liability. The plaintiff signed this release quickly and without reading it, as there were several cars in line behind him.
The plaintiff first argued “fraud in the execution” of the release because it was presented as a sign‐in sheet and he did not have sufficient time to read the document before signing it. The court rejected this argument, holding there was nothing that prevented the plaintiff from reading the release if he wanted to, and the release was written in readily understandable language.
While unsuccessful in arguing that the release was void, the plaintiff nevertheless did prevail in contending there were triable issues of fact as to whether the defendant was grossly negligent, taking the case outside the scope of the release. Among other things, the plaintiff presented evidence that: (1) it is standard practice in the industry (as explained in an applicable manual) to have caution flaggers on their platforms at all times; (2) there was no caution flagger on the platform near where the plaintiff fell off his bike, and (3) according to the plaintiff’s expert, the failure to post a caution flagger on the platform was an extremely egregious error. Based on this evidence, the Rosencrans court concluded that the question of gross negligence was one that must be submitted to the jury, and summary judgment was improperly granted.
Similar reasoning was applied by the court to overturn a grant of summary judgment in Eriksson v. Nunnink, supra, 191 Cal.App.4th 826. Eriksson was a wrongful death case brought by the parents of the decedent, Mia Erikkson. Mia was an avid horse rider and equestrian competitor. The defendant Nunnink was Miaʹs riding coach.
In November 2006, Mia participated in an equestrian competition at Galway Downs in Temecula. She was 17 years old at the time. Although Miaʹs horse was recently injured in another competition, Nunnink persuaded Miaʹs mother, Karan, that the horse was fit to ride in the Galway event. Based on Nunninkʹs representations, Karan allowed Mia to compete. During the cross‐country portion of the competition, Miaʹs horse tripped over a hurdle. With the Erikssons looking on, Mia fell off the horse and the horse fell on Mia, causing Miaʹs death. Eriksson, supra, at p. 830.
The plaintiff’s filed suit against the riding coach, arguing that the coach was liable for allowing Mia to ride in a difficult competition despite knowing that her horse was injured and unfit. The plaintiffs also alleged that the coach misrepresented the horse’s condition to Mia’s mother in order to get her consent for Mia to compete.
The defendant moved for summary judgment, contending the case was barred by a release signed by Mia and her mother, and also by primary assumption of the risk. Much of the court’s opinion in the Eriksson case concerns the primary assumption of the risk issue and it is worthwhile reading if you have a case where the liability of a sports coach or instructor is an issue. A full discussion of that, however, will have to wait for another column.
With regard to the release, the Eriksson court bypassed all the traditional arguments relating to ambiguity and contractual construction, and ruled that regardless of whether the release was properly drafted, it did not bar the plaintiffs’ claims that the defendant riding coach was grossly negligent. Id. at 855. Viewing the facts in the light most favorable to the plaintiff, the court concluded there was evidence the defendant, an experienced riding coach, knew or should have known that the horse was unfit to jump and misrepresented the condition of the horse to the decedent’s parents. Id. at 857. From that, the court concluded there were triable issues as to whether the defendant’s conduct was grossly negligent and therefore outside the scope of the release. Id.
The importance of these two decisions should not be overlooked. In both cases, the plaintiffs were able to avoid being tossed out of court due to an arguably valid release on the basis of gross negligence. And while the conduct at issue in both cases seems fairly egregious (particularly that in Eriksson), it is not that far beyond what might be viewed as “ordinary negligence.” If failing to have race spotters can amount to gross negligence, so can many other similar instances of misconduct.
One final analytical note: Be careful not to confuse the “gross negligence” standard for overcoming a signed release with the “recklessness” standard implicated in primary assumption of the risk. Although courts sometimes have mixed the two together, they are legally distinct concepts.
In the primary assumption of the risk context, “recklessness” doesn’t refer to conduct more culpable than ordinary negligence but rather consists of conduct that “totally outside the range of the ordinary activity involved in the sport.” Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1495‐96. Obviously, there will be some overlap since conduct that is grossly negligent generally would fall outside the range of ordinary activity in the sport, but “reckless” conduct does not have to be grossly negligent. I hope to discuss this in more detail in a future column.