Case Name: Katheryn Curi v. City of Saratoga, et al.

Case No: 18CV328242

I. Background
II.

Plaintiff Katheryn Curi (“Plaintiff”) brings this action against the City of Saratoga (“Saratoga”), among others, for damages associated with a bicycle accident.

According to the allegations of the first amended complaint (“FAC”), on June 5, 2016, Plaintiff was thrown off her bicycle when it hit an area of damaged pavement on Pierce Road in Saratoga. (FAC, ¶ 15.) As a result of the accident, Plaintiff required medical attention and suffered mental, physical and emotional injuries. (Id. at ¶¶ 17, 20.) She also suffered lost wages due to inability to work, and suffered a loss of ability to complete household services. (Id. at ¶¶ 18, 19.)

As a result of the foregoing, Plaintiff alleges two causes of action for: (1) dangerous condition of public property; and (2) negligence. Only the first cause of action is alleged against Saratoga.

Before the Court is Saratoga’s motion for summary judgment.

III. Judicial Notice
IV.

In support of its motion, Saratoga seeks judicial notice of the original complaint filed on May 14, 2018, and Saratoga’s answer, filed on June 27, 2018. The request is made pursuant to Evidence Code section 452, subdivision (d) which allows a court to take judicial notice of court records.

While the Court may take judicial notice of court records, matters subject to judicial notice must be relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.) The original complaint is relevant to Saratoga’s substantive arguments. The answer is also relevant because “the pleadings set the boundaries of the issues to be resolved at summary judgment.” (Oakland Raiders v. Nat. Football League (2005) 131 Cal.App.4th 621, 648.) However, while the Court takes judicial notice of the existence of the answer and the fact that it contains certain statements, denials or defenses, it does not take judicial notice of their truth. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564.)

Therefore, Saratoga’s request for judicial notice is GRANTED.

V. Motion for Summary Judgment
VI.

Saratoga moves for summary judgment pursuant to Code of Civil Procedure section 437c, subdivision (p)(2), arguing that the primary assumption of the risk doctrine provides it a complete defense.

A. Legal Standard
B.

“A motion for summary judgment shall be granted when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (Code Civ. Proc., 437c, subd. (c); Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, internal citations omitted.) “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must make a prima facie showing either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. (Ibid; Code Civ. Proc., § 437c, subd. (p)(2).) Once a defendant meets its burden, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. (Id. at 850.)

The motion is evidentiary in nature and cannot be based solely upon the allegations in a pleading. (College Hospital Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.) In ruling on the motion, a court cannot weigh the evidence presented or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.)

C. Primary Assumption of the Risk
D.

Saratoga argues the road damage Plaintiff encountered is an inherent risk of bike riding, so primary assumption of the risk provides it a complete defense.

Primary assumption of risk is a question of law amenable to resolution by summary judgment because, if applicable, it negates the duty element of a negligence claim. (Knight v. Jewett (1992) 3 Cal.4th 296, 313 (“Knight”).) “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks.” (Connelly v. Mammoth Mountain Ski Area (1994) 39 Cal.App.4th 8, 11 citing Knight, supra, 3 Cal.4th at 314-316.) The doctrine bars recovery because no duty of care is owed as to these inherent risks. (Ibid.) An activity falls within the doctrine if “the activity 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.” (Bjork v. Mason (2000) 77 Cal.App.4th 544, 550.) The doctrine has been applied to an organized, noncompetitive bicycle ride on a public highway with large numbers of riders to negate the duty one rider owed another. (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221 “Moser”.)

Saratoga produces evidence through Plaintiff’s deposition testimony that on the day of the accident, Plaintiff was involved in an organized bicycle ride on a public highway. (Depo. of K. Curi, pp. 28:15-19, 32:19-25; 33:1-8, 17-25.) It also produces evidence that Plaintiff was injured during that ride when her bike hit an area of damaged pavement, specifically damage surrounding a water valve. (Id. at pp. 43:18-25; 44:10; 48:11-15, 16-18; 26:16-25; 27:1-2; and Pl. Evid. ISO MSJ Ex. D.)

However, Saratoga fails to establish that Plaintiff’s accident due to a pavement defect is an inherent risk of the sport, and its citation to Moser and attempts to draw comparisons are not well developed and in fact are misplaced. In that case, the inherent risk of an organized, noncompetitive bicycle ride was defined as “one cyclist riding alongside another and swerving into the latter” and the defendant was a fellow rider. (Moser, supra, 105 Cal.App.4th 1211, 1222.) In support of its ruling, the court pointed to a release signed by the plaintiff which warned of the risk of accidents caused by collisions with other participants. (Ibid.) Saratoga produced no evidence that falling due to pavement defects like the one at issue here is an inherent risk of an organized bicycle ride and its argument merely concludes that “potential injury abounds from myriad potential circumstances” including “potholes and asphalt breaks.” (Saratoga’s P’s & A’s ISO MSJ, p. 4:16-19.) This statement is unsupported by facts or reference to case law.

Saratoga’s argument and evidence regarding Plaintiff’s awareness of the risks of road biking based on her experience, familiarity with the road, and prior accidents at other locations also do not assist it. “A court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Foltz v. Johnson (2017) 16 Cal.App.5th 647, 654, citing Luna v. Vela (2008) 169 Cal.App.4th 102, 108.) “The possibility that any person who rides a scooter, bicycle or other wheeled vehicle might be injured by the negligence of another is insufficient to impliedly excuse others from acting with due care to avoid accidents.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 73, citations omitted.) This is true because even if a sport has inherent risks, primary assumption of the risk “does not grant unbridled legal immunity to all defendants…” (Moser v. Ratinoff, supra, 105 Cal.App.4th 1211, 1222, citing Knight, supra, 3 Cal.4th 296, 315-316.)

Saratoga’s argument regarding its position as a non-organizer of the bike ride further mischaracterizes the purpose of the doctrine of primary assumption of the risk, and does not support its position. Likewise, its reliance on Calhoon v. Lewis (2000) 81 Cal.App.4th 108, is misplaced as that case involved a private homeowner for whom no duty was found to be owed to a child skateboarding on their property. Unlike the homeowner in Calhoon whose property was not maintained for the purpose of skateboarding, it cannot be said, as Saratoga argues, that it is “uninvolved with and unconnected to the sport” when it maintains the roads for use by vehicles including bicycles.

As a result, Saratoga does not meet its burden to show that primary assumption of the risk negates its duty to cyclists to repair and maintain streets. That a rider may fall off of a bike does not make an accident due to poorly maintained asphalt an inherent risk of the sport, and Saratoga fails to establish that it does. In fact, its position is contrary to the express purpose of the doctrine of primary assumption of the risk, which is to avoid a chilling effect on the vigorous participation in sports that would occur if liability is found for normal, expected risks in a sport. (See Knight, supra, 3 Cal.4th 296, 336.) Instead, Saratoga’s position would impose a duty on a cyclist to proceed with caution and awareness of the potential for any hazardous road defects, thereby chilling vigorous participation.

Consequently, Saratoga’s motion for summary judgment is DENIED.