2012-00126284-CU-PO

Linda Shepherd vs. Hawes Motorsports LLC

Nature of Proceeding:   Motion for Summary Judgment and/or Adjudication

Filed By:  Lucas, Robert W.

**If any party requests oral argument, then at the time the request is made, the
requesting party must inform the court and opposing counsel of the specific
issues on which oral argument is sought.**

Defendant Hawes Motorsports, LLC’s (“Hawes”) motion for summary judgment is
GRANTED.

This is a wrongful death case.  Plaintiff Linda Shepherd (“Shepherd”) is suing after the
death of her husband, Merle Shepherd, Jr. (“Decedent”).  Decedent died in a big rig
truck he was driving during an exhibition event at Marysville Raceway Park
(“Raceway”).  His truck collided with another and rolled.  Hawes operates the Raceway
and promoted the event where the incident occurred.  Hawes also owned and
furnished the truck that Decedent drove during the event.  Shepherd personally
observed the incident.

Shepherd’s complaint contains four causes of action against Hawes and others for
wrongful death, “Wrongful Death: Gross Negligence,” negligent infliction of emotional
distress (“NIED”), and NIED: Gross Negligence.  Hawes now moves for summary
adjudication of each of these causes of action and, therefore, for summary judgment.
Hawes’ motion is based on (1) a Release and Waiver of Liability, Assumption of
Liability and Indemnity Agreement (“Release”) that both Shepherd and Decedent
signed before the incident and (2) the doctrine of primary implied assumption of the
risk.  Because the court concludes that primary assumption of the risk bars all of
Shepherd’s causes of action, it does not address the parties’ separate dispute about
the effect of the Release.

Primary assumption of the risk means that the plaintiff has voluntarily
participated in a sport that includes various inherent risks, and therefore,
the defendant is relieved of his or her duty to use due care to avoid the
plaintiff suffering an injury as a result of those inherently risky aspects of
the sport. [Citation.] The question of whether a defendant should be
relieved of his or her duty is a question of law and policy. [Citation.] A
court must evaluate (1) the fundamental nature of the sport, and (2) the
defendant’s relationship to the sport, in order to determine if the
defendant should be relieved of his or her general duty of care. [Citation.]
As a matter of policy, a duty should not be imposed where doing so
would require that an integral part of the sport be abandoned, or would
discourage vigorous participation in sporting events. [Citation.] If the
defendant is relieved of his or her duty of care, then the plaintiff’s
negligence cause of action is barred. [Citation.]

(Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082-1083 [citations
and internal quotation marks omitted].)

“[P]rimary assumption of the risk is not limited to sports but applies to any physical
activity that involves an element of risk or danger as an integral part of the activity.”  (
Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 333.)  “Primary assumption of
the risk is an objective test [that] does not depend on a particular plaintiff’s subjective
knowledge or appreciation of the potential for risk.”  (Saville, 133 Cal.App.4th at 866
[citation omitted; brackets added].)  Although primary assumption of the risk relieves
the organizer of a sporting event from any duty to save participant from risks inherent
in the event, the organizer remains under a duty not to increase the risks.  (See
Levinson v. Ownes (App. 3 Dist. 2009) 176 Cal.App.4th 1534, 1543.)

Although the existence vel non of a legal duty is one for the court, the court may
consider evidence, including expert testimony, to decide whether a particular condition
or practice increased the risks associated with a dangerous sport or activity.  (See
Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017-1018 [citations
omitted].)  “When a defendant moves for summary judgment on the basis of implied
assumption of the risk, he or she has the burden of establishing the plaintiff’s primary
assumption of the risk by demonstrating that the defendant owed no legal duty to the
plaintiff to prevent the harm of which the plaintiff complains.”  (Patterson v.
Sacramento City Unified School Dist. (App. 3 Dist. 2007) 155 Cal.App.4th 821, 826.)

The court concludes that colliding with other vehicles as well as objects in and around
a racetrack is an inherent risk associated with big rig exhibition events.  The facts that
the event in question was an exhibition event in which Hawes had instructed drivers
not to exceed certain speed limits does not alter the court’s conclusion:

An activity falls within the primary assumption of risk doctrine if it is done
for enjoyment or thrill, requires physical exertion as well as elements of
skill, and involves a challenge containing a potential risk of injury.
[Citations.] In various sports, going too fast, making sharp turns, not
taking certain precautions, or proceeding beyond one’s abilities are                      actions held not to be totally outside the range of ordinary activities
involved in those sports. [Citation.]

(See Huff v. Wilkins (2006) 138 Cal.App.4th 732, 739 [citations, brackets and internal
quotation marks omitted]; see also Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148,
1155-1156 [although not a sport in the strict sense, riding bumper cars is covered by
primary assumption of risk doctrine]; Amezcua v. Los Angeles Harley-Davidson, Inc.
(2011) 200 Cal.App.4th 217, 231-232 [organized, noncompetitive, recreational
motorcycle riding falls within those activities to which primary assumption of risk
applies because “it involves physical exertion and athletic risks not generally
associated with automobile driving”].)

Nor is the court persuaded that a triable issue exists as to whether Hawes increased
the inherent risk of big rig racing by locating a berm between the track and the infield
or by failing to install a roll cage in Decedent’s truck.  Both conditions were obvious to
Decedent, an experienced driver, and Hawes was under no duty to remedy dangers
associated with the inherent risks of collision.  (See Souza v. Squaw Valley Ski Corp.
th
(App. 3 Dist. 2006) 138 Cal.App.4   262, 268-270.)  Given Shepherd’s concession that
Decedent was required to wear a helmet to participate in the exhibition, (UMF 45),
there is no genuine dispute that the exhibition encompassed the risk of injury from
collision.

In short, the court concludes that the primary assumption of the risk relieved Hawes of
any duty to Decedent and, therefore, that all of the causes of action in the complaint
must be summarily adjudicated in Hawes’ favor.

Objections to Evidence

Hawes’ Objections are OVERRULED.

Shepherd’s Objection to the Reply Papers as Untimely

The objection is OVERRULED.  Shepherd has not demonstrated any prejudice.

Judicial Notice

Hawes’ request for judicial notice of the complaint and answer is GRANTED.

Conclusion

Summary judgment is GRANTED.

Hawes is directed to lodge a formal order for the court’s signature, and a judgment.