Sirott v. Cal. Dept. of Transp.

Filed 8/23/07 Sirott v. Cal. Dept. of Transp. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Defendant State of California, Department of Transportation (hereafter State) appeals a judgment in favor of plaintiff Carol Sirott in her negligence action for injuries she suffered while riding a bicycle on a highway. We conclude, among other things, that: 1) the State's appeal is timely, 2) there was substantial evidence of a dangerous condition on the roadway, 3) the State is not immune from liability under the hazardous recreational activities doctrine and 4) Sirott did not assume the risk of this dangerous road condition. We affirm.

FACTS

Sirott was an experienced bicyclist. She rode with a group of bicyclists on a 70-mile ride on State Highway 1 heading towards San Luis Obispo. The highway has a paved shoulder lane, designed for and commonly used by bicyclists. The State is responsible for maintaining that lane. There were no other bicyclists riding alongside of Sirott as she traveled downhill on the shoulder.

Sirott passed another bicyclist who was riding on the shoulder ahead of her. She looked to see whether other cars or bicyclists were nearby. She was traveling between 15 to 25 miles per hour. When it was safe she attempted to ride from the shoulder on to the highway lane to pass the bicyclist in front of her. But before she could do this she "hit a lip" in the road which "trapped the wheel" of her bike. She fell and hit her head on the pavement. Sirott suffered serious injuries.

The roadway and the adjoining shoulder were designed to be at the same height. But Sirott's wheel hit part of a long raised strip which ran parallel to the highway. This raised area was inside the solid white line which separates the traffic lane from the shoulder bicycle lane and it rose above the shoulder by heights ranging between one and a half inches to two and a quarter inches. This defect is classified as a "step" or "step-up" which is defined as "a vertical, or almost vertical, change in elevation of the roadway surface." The step created a sharp cliff between the road and the lower shoulder. A year before Sirott's accident another bicyclist had fallen in this step. The State never repaired this portion of the highway.

Allen Weber, a traffic engineer, testified that the difference in height between the shoulder and the highway lane was not a trivial defect. He said the heights of the step in the area where Sirott fell, which ranged from one and a half inches to two and a quarter inches, were unsafe for bicyclists, motorcyclists and "four-wheel vehicles."

John Forester, a cycling transportation engineer, testified that hitting a step three-eights of an inch high would cause the front wheels of many bicycles to be "steered in a dangerous direction." Smaller steps may also "create a hazard for bikes." He said the danger to the bicyclist is increased where the bike collides with a step which is "parallel to travel."

Gary Hesler, the State's accident reconstruction expert, testified that Sirott collided with a step which had a "height differential" of half an inch which is "insignificant." He said Sirott's excessive speed was the primary cause of the accident. On cross-examination he said that at its highest point the step rose above the shoulder by a height of one and a half inches. In his deposition he said the highest point was one-half inch.

The jury found there was a dangerous condition on the State highway and the State's failure to correct it was unreasonable. It determined that the State was 75 percent negligent, Sirott was 5 percent negligent and others were 20 percent negligent. The court awarded Sirott $1,045,070.50.

DISCUSSION

I. Untimely Appeal

Sirott has filed a motion to dismiss this appeal. She contends that the State's notice of appeal is untimely. We disagree.

An appellant must file an appeal within 60 days of the service of the notice of entry of judgment. (Cal. Rules of Court, rule 8.104(a)(1) & (2).) But where the appellant files a motion for a new trial the time is extended. California Rules of Court, rule 8.108(a) states: "If any party serves and files a valid notice of intention to move for a new trial and the motion is denied, the time to appeal from the judgment is extended for all parties until the earliest of:

"(1) 30 days after the superior court clerk mails, or a party serves, an order denying the motion or a notice of entry of that order;

"(2) 30 days after denial of the motion by operation of law; or

"(3) 180 days after entry of judgment."

Here the notice of entry of judgment was filed on June 8, 2006. The State filed a motion for a new trial which was denied on July 26, 2006. The minute order reflects that the court announced its intended decision on July 26, but ordered Sirott's counsel to prepare a formal order. That order was signed by the trial court and filed on August 21, 2006. The State filed its notice of appeal on September 18, 2006.

Sirott contends that the 30-day appeal period in California Rules of Court, rule 8.108(a)(1) applies and starts running from the minute order of July 26, 2006. She claims that because the State did not file its notice of appeal until September 18, 2006, the appeal is untimely. We disagree. The 30-day time period under this rule starts to run only after service of the order denying the motion for new trial. But here there is no evidence in the record showing service of the July 26, 2006, minute order. There is also no certificate or proof of service attached to the August 21, 2006, order denying the new trial motion. The notice of appeal was, however, filed within the 30-day period following the filing of that August 2l order.

The State contends that the 30-day appeal period in California Rules of Court, rule 8.108(a)(2) does not apply. We agree. That rule relates to denials of new trial motions "by operation of law." (Cal. Rules of Court, rule 8.108(a)(2).) This occurs where the court does not rule on a motion for new trial within 60 days of the notice of entry of judgment. (Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1486-1487; Spier v. Lang (1935) 4 Cal.2d 711, 715.) But here the court announced its intended ruling on the motion on July 26, 2006, which is within that 60-day period. Because the court exercised its discretion by making a ruling on the merits of the motion, the operation of law provision is not applicable. (Spier, at p. 715.)

The State claims its appeal is timely as it falls within California Rules of Court, rule 8.108(a)(3). We agree. That rule requires the notice of appeal to be filed within 180 days of the entry of judgment. The State filed its appeal on September 18, 2006, which falls within that period. The appeal is timely. Sirott's motion to dismiss is denied.

II. Dangerous Road Condition

The State contends the judgment must be reversed because there was no dangerous road condition. It claims the evidence shows only a half-inch difference in elevation between the shoulder and the road which constitutes only a "trivial defect." We disagree.

"A public entity may be liable for injuries caused by a dangerous condition of its property." (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 233; Gov. Code,  835.) A condition is not dangerous where "'. . . the risk created by [it] was of such a minor, trivial or insignificant nature . . . that no reasonable person would conclude that the condition created a substantial risk of injury when such property. . .was used withdue care in a manner in which it was reasonably foreseeable that it would be used.'" (Sambrano, at pp. 233-234, citing Gov. Code, 830.2, italics added and omitted.) "Whether property is in a dangerous condition often presents a question of fact . . . . " (Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380, 1382.) We presume the evidence supports every finding of fact unless the appellant demonstrates otherwise and we draw all reasonable inferences from the record to support the judgment. (Glendale Fed. Sav. & Loan Assn. v. Marina View HeightsDev. Co. (1977) 66 Cal.App.3d 101, 152.)

Here jurors could reasonably infer that Sirott collided with a dangerous "step" with a height far greater than half an inch and that this was not a trivial defect. Sirott testified that she fell on the road "between a clump of trees and [a] speed-limit sign." Weber testified that in this area the road rose above the shoulder by heights ranging from one and a half inches to two and a quarter inches. He said that area was not "safe for bicyclists," was a "hazard . . . to motorcyclists and four-wheel vehicles," and the step was not a trivial defect.

From Forester's testimony jurors could reasonably infer this step was particularly dangerous for bicyclists. It ran parallel with the road on a downward slope where speeds are expected to increase. A year before Sirott's accident another bicyclist had fallen in that same area. The State did not repair that portion of the highway. "[A] dangerous condition exists when public property is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself." (Bonanno v. Central ContraCosta Transit Authority (2003) 30 Cal.4th 139, 148.) Here the evidence is sufficient to establish a dangerous condition. (Ibid.)

The State notes that Hesler concluded that the area where Sirott fell had only a one-half inch step deviation which is a trivial defect. But we do not weigh the evidence or resolve evidentiary conflicts. (Eidsmore v. RBB, Inc. (1994) 25 Cal.App.4th 189, 195.) Moreover, the jury could find that Hesler had been impeached on cross-examination and had made speculative assumptions about the point of collision. It could also reasonably infer that photographic evidence refuted his testimony about the height of the step at the point of impact.

III. Immunity From Liability For A Hazardous Recreational Activity

The State contends it is immune from liability because Sirott engaged in a hazardous recreational activity. It notes that the Government Code provides immunity for the State for such activities. (Gov. Code,  831.7, subd. (a).)

Sirott claims the State waived this issue by raising it for the first time on appeal. We agree. This immunity issue involves mixed questions of law and fact. (Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519 [the issue is one of law where the facts are undisputed].) The State neither raised this issue at trial nor did it give Sirott the opportunity to present evidence to challenge this claim. But even on the merits the result is the same.

Government Code section 831.7, subdivision (a) states in relevant part: "Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity . . . ." This includes an activity "conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator." (Gov. Code,  831.7, subd. (b).) The statute lists several categories of activities which fall within the definition, including "Animal riding, including equestrian competition, archery, bicycle racing orjumping, mountain bicycling." (Gov. Code,  831.7, subd. (b)(3), italics added.)

Sirott did not engage in any of the bicycling activities which are listed as hazardous recreational activities. She did not participate in bicycle racing or jumping. Nor did her activities fall within the definition of mountain bicycling. Government Code section 831.7, subdivision (b)(3) states: "For the purposes of this subdivision, 'mountain bicycling' does not includeriding a bicycle on paved pathways, roadways or sidewalks." (Italics added.)

But even if a group bicycle ride falls within this section the result does not change. Here the State's negligence of not repairing the road caused her injuries. This is not a case where those engaged in the recreational activity with Sirott caused her injuries. (Compare Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1214.) The State therefore may not use this provision as a defense. Government Code section 831.7, subdivision (c) states in relevant part: "Notwithstanding the provisions of subdivision (a), this section does not limitliability which would otherwise exist for any of the following: . . . (3) Injury suffered to the extent proximately caused by the negligent failure of the public entity or public employee to properly construct or maintain in good repair any structure . . . ." (Italics added.) Under this section a plaintiff's participation in a potentially hazardous sport does not result in immunity where the public entity's negligence causes the plaintiff's injury. (Perez v. City of Los Angeles (1994) 27 Cal.App.4th 1380, 1383; cf. Branco v. Kearney Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193 [plaintiff injured in the sport of bicycle jumping on an obstacle course not barred from suing those who negligently designed the course].)

Relying on Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097, the State contends that the Legislature enacted the Government Code immunity provisions to protect itself and other public entities from a "plethora of litigation." It claims that applying immunity here is consistent with the legislative goal of protecting public entities which is discussed in Farnham.

But Farnham does not help the State. There the Court of Appeal held that a city was immune from liability for injuries suffered by a bicyclist who fell on a defective paved trail which provided access to recreational areas. But the immunity provision in that case, Government Code section 831.4, expressly delineated between unpaved roads and trails for which immunity applied, and state highways, for which immunity does not exist. The Legislature immunized public entities from liability for defective trails because of "the difficulty cities and counties might face in inspection and repair." (Farnham v. City of Los Angeles, supra, 68 Cal.App.4th at p. 1103.) These trails were used by bicyclists, skateboarders and joggers. They were not for business or for vehicular traffic and are often in isolated or remote areas. The Legislature determined that without immunity cities and counties could not afford to maintain these areas which were used by a relatively small number of recreational users.

By contrast here there is no immunity provision comparable to Government Code section 831.4 for defective State highways. Had the Legislature wanted to immunize the State from liability caused by dangerous road conditions it could have easily done so. But there are strong policy reasons why it has not. The highway system is one of the main arteries of transportation in this State. Granting immunity for maintaining dangerous road conditions would undermine highway safety. The State also has an interest to protect bicyclists from "a substantial risk of injury." (Bonanno v. Central Contra Costa Transit Authority, supra, 30 Cal.4th at p. 149; Gov. Code,  835; Sts. & Hy. Code, 890.)

Although Sirott participated in a group bicycle ride, we must "analyze the evidence of the nature of [her] activity" and "the manner in which it was performed." (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 71.) At the time of the accident Sirott was riding by herself with no other bicyclists "alongside." She drove carefully. There was no evidence that Sirott did anything which was more hazardous than what bicyclists typically do when passing another rider. The State has not shown that Sirott's actions constituted a hazardous activity.

IV. Assumption Of The Risk

The State contends that Sirott assumed the risk for her injuries. It claims that the "Primary Assumption Of The Risk [doctrine] Relieves The State Of Its Duty Of Care To [Sirott] For Dangerous Conditions." We disagree.

"The doctrine of 'primary' assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others." (Childs v. County of Santa Barbara, supra, 115 Cal.App.4th at p. 69.) "Primary assumption of risk is a complete bar to recovery." (Ibid.) "The doctrine is based on the commonsense conclusion that where a person is playing an active sport, others involved in the activity should not be liable for injuries caused by risks that are an inherent part of the sport unless the defendant's conduct has increased the risk of harm." (Id., at p. 70.) But "merely using recreational equipment for pleasure does not trigger the doctrine." (Id., at p. 71.)

The State claims that because Sirott participated in a group bicycle ride the assumption of risk doctrine applies and bars recovery for her injuries. But the issue is what risks did she assume?

In Moser v. Ratinoff, supra, 105 Cal.App.4th 1211, 1222, the Court of Appeal held that a bicyclist in a group bicycle ride assumed the risk that he might collide with another bicyclist. Such risk "is inherent in a long-distance, recreational group bicycle ride." (Ibid.) But the court was careful to note that bicyclists do not assume risks caused by nonparticipants. It said, "[t]here are traffic-related risks that might not be considered inherent in the activity involved here, such as those involving automobile negligence." (Id., at p. 1223, fn. 6.) It noted that bicyclists participating in such an activity also do not assume the risk that a dog would bite them. (Ibid.)

In Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 329, the Court of Appeal held that falling may be an inherent risk in social dancing. But dancers do not assume the risk that those responsible for maintaining the dance floor will increase the risks by applying a slippery substance.

In Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 823, the Court of Appeal noted that falling is an inherent risk in the sport of horse jumping. But the primary assumption of the risk doctrine did not apply to bar a suit against those who were negligent by not maintaining a safe course. Riders assume the risk that they could fall while trying to make a jump. But they have a right to expect that those with expertise in planning the course would not set the jumps at dangerous intervals or unsafe heights.

In Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at page 193, the court held that falling is an inherent part of the sport of bicycle jumping. That sport involves riding on a motocross obstacle course containing bumps, jumps and turns which often cause bicycles to become "airborne." (Id., at p. 188.) But the primary assumption of the risk doctrine did not apply to bar a suit for damages for injuries sustained by a rider who fell on a negligently designed hill on that course.

Here had Sirott been injured in a collision with another bicyclist she would have assumed that risk. But her injuries were the result of a road hazard independent from and not inherent in a group ride. At the time of the accident she was riding "by herself" with no other bicyclists "riding alongside." The step was a hazard to Sirott whether she rode in a group, by herself, for recreation or business. It was dangerous for others not involved in group rides, such as bicyclists riding to work or children riding to school. From Weber's testimony the jury could reasonably infer this road defect was also dangerous for those riding motorcycles and driving cars. It could find that Sirott assumed a variety of risks, but not the one she encountered. The State's maintenance of this dangerous condition "increased the risk of harm." (Childs v. County of Santa Barbara, supra, 115 Cal.App.4th at p. 70.) "The doctrine of assumption of risk is intended to reduce a . . . legal duty to avoid risks created by a particular type of sport or recreational activity . . . ." (Id., at p. 74.) "[B]ut [it] is not intended to eliminate a duty to avoid risks not only to the participants in the activity but also to other members of the public who properly and foreseeably utilize the same facilities." (Ibid.)

The judgment is affirmed. Costs on appeal awarded to respondent.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

COFFEE, J.

PERREN, J.

Martin J. Tangeman, Judge

Superior Court County of San Luis Obispo

______________________________

Bruce A. Behrens, Chief Counsel, David Gossage, Deputy Chief Counsel, Landa S. Morris, Patrick A. Petersen and Kenneth G. Nellis for Defendant and Appellant.

Law offices of John H. Howard, Gregory Phillips; Lascher & Lascher and Wendy Cole Lascher for Plaintiff and Respondent.

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