McCassy v. Super. Ct.
Filed 4/21/11 McCassy v. Super. Ct. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
| MALCOLM McCASSY et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; KELLEY POSTHUMA et al., Real Parties in Interest. | E050743 (Super.Ct.No. RIC479956) OPINION |
ORIGINAL PROCEEDINGS; petition for writ of mandate. Bernard Schwartz, Judge. Petition granted.
Hosp, Gilbert, Bergsten & Hough, Warren L. Gilbert, Robert T. Bergsten and B. Eric Nelson for Petitioners.
No appearance for Respondent.
The Heller Law Firm, Stephen Heller and Shayne Heller LaChapelle for Real Parties in Interest.
In this case, we conclude that the real parties in interest, Posthuma, failed to raise a triable issue of fact that the existence of a PVC pipe in the vicinity of a motocross racetrack was a contributing factor in causing the injuries suffered by Kelley Posthuma. Consequently, petitioners, the owners and operators of a motocross racetrack, were entitled to summary judgment and we direct the trial court to grant their motion.[1]
FACTUAL AND PROCEDURAL BACKGROUND
Kelley Posthuma, then age 17, went to a motocross racetrack to practice riding. She brought her own motorcycle. She lost control of her motorcycle and went off course and crashed. She is now a paraplegic.
She sued the owners and operators of the track based on a theory of premises liability. Her father and brother, who were present, sued for infliction of emotional distress.
Petitioners moved for summary judgment based on primary assumption of the risk.
Kelley does not remember how the accident happened. An eyewitness, Kimberley Dietrich, an emergency medical technician employed by the track, declared that she was standing near the scene of the accident when it occurred. She heard the throttle of a motorcycle on the track wide open and heard the rider, Kelley, scream. Dietrich turned her head and saw Kelley come off a jump and leave the track at a high rate of speed. “The throttle of the motorcycle was still wide open and the rider was screaming. Although the rider was seated on the motorcycle, it appeared that she was unable to control the speed or direction of travel. [¶] The motorcycle struck a portion of light PVC pipe that is part of the track irrigation system. The pipe, which is thin and intended to break[,] easily broke without having any effect whatsoever on the trajectory or momentum of the motorcycle. The motorcycle continued approximately another 20 feet or so and struck an embankment. Striking the PVC pipe definitely did not cause Kelley to [lose] control of her motorcycle.”
In opposition, real parties in interest submitted the declaration of an expert witness, Edward P. Milich, who is an engineer and a motorcycle racing champion. He states that he is familiar with the standard of care for the construction, maintenance and supervision of racing tracks. He opines that the track increased the normal risk of injury. “These risks included a PVC pipe assembly located approximately ten feet from the track’s racing surface such that if a rider lost control and left the track, he or she would have a high probability of striking the pipe. This could cause a loss of control, a crash, and the risk of serious injury or death.” (Italics added.)
Milich disagrees with Dietrich’s assertion that the PVC was light and “break away,” noting that that would require an engineering analysis.
Milich also disagrees with Dietrich’s assertion that the PVC pipe Kelley struck broke and did not alter the motorcycle’s speed or direction. He asserts that it could have. He also says that it did cause Kelley to lose control. He says that the motorcycle could have more easily “tripped” by a stationary object when proceeding down a slope. He then opines that such a tripping crash probably occurred in this case.
The trial court sustained real parties in interest’s objections to Dietrich’s declaration. It noted Dietrich is not an expert on motocross, track design, or safety and, therefore, her personal opinion that striking the PVC pipe definitely did not cause Kelley to lose control is insufficient to establish that the action is barred by the primary assumption of the risk.
The court denied summary judgment on the primary assumption of risk theory. It commented that riding off the track seems to be inherent to the sport, but that the sport does not inherently require placement of the irrigation system so close to the track to cause an extreme risk of injury. It noted that if Kelley had just driven off the track and been injured as a result of coming off the track and crashing, and the injuries occurred, petitioners would have a substantial argument. However, it added that the intervening cause potentially is responsible for the injuries or maybe greater injuries that would not have been caused otherwise because of the placement of this pipe.
DISCUSSION
As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his or her failure to exercise reasonable care in the circumstances. (Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).) Under the doctrine of primary assumption of risk, however, there is no duty to eliminate or protect a participant in a sport or recreational activity against risks inherent in that sport or activity; but participants do not impliedly assume the risk of actions by the defendant, which increase the risk of harm inherent in the sport or recreational activity. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-116 (Calhoon).)
The question of assumption of risk is amenable to resolution by summary judgment, since the existence and scope of the defendant’s duty of care is a legal question depending on the nature of the sport or activity and on the parties’ general relationship to the activity. (Knight, supra, 3 Cal.4th at p. 313.)
We need not engage in an extended analysis whether the presence of the PVC pipe increased the risks inherent in motocross racing, or whether it increased the risk of harm as discussed in Calhoon, because we have concluded that this case must be resolved in defendant’s favor even assuming the existence of a duty of care.
First, we agree that Dietrich is not an expert and could not offer a valid opinion as to the design and installation of the PVC pipe. Thus, her opinion that it was designed for easy breakaway has no value. However, we reject the trial court’s characterization of the remainder of Dietrich’s evidence as inadmissible personal opinion. Her description of the incident is based on personal observation: she heard Kelley scream, heard the motorcycle’s throttle wide open, and saw Kelley leave the track at a high rate of speed. Dietrich also indicated that Kelley stayed on the motorcycle until the impact. These statements are admissible. (See Rash v. City & County of San Francisco (1962) 200 Cal.App.2d 199, 204 [lay witness’s estimate of speed of vehicle is admissible].) Similarly, Dietrich’s testimony that striking the PVC pipe did not cause Kelley to lose control or change trajectory is admissible because it is based on personal observation. By using the word “trajectory” Dietrich was not expressing an opinion but, in essence, relating her observation that Kelley’s motorcycle continued upon the same line of travel after hitting the PVC pipe as it had been going before hitting the pipe. Disregarding Dietrich’s inadmissible opinion regarding the PVC pipe’s design, her declaration establishes that the presence of the PVC pipe was not a factor in causing Kelley’s injuries. It follows that petitioners did make a prima facie showing for summary judgment.
Real parties in interest failed to raise a triable issue of fact to rebut this showing. Although their witness Milich had sufficient credentials to establish his expertise, the opinions he did offer were based on assumptions of fact that were without evidentiary support and, thus, should have been dismissed by the trial court as mere speculation or conjecture. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) Expert reconstruction of an accident may indeed yield valuable evidence (Box v. California Date Growers Assn. (1976) 57 Cal.App.3d 266, 274-275), but we should point out that the accident reconstruction expert in Box based his opinions on a consideration of the following factors: “(1) the distance traveled by the motorcycle after the collision; (2) the point of rest of plaintiff’s body; (3) the type of damage to the left front fender of the pickup truck; (4) an examination of the same make and model of motorcycle; and (5) an inspection of the accident scene. The foregoing constituted sufficient grounds upon which to predicate an opinion as to the path of the motorcycle after impact.” (Id. at p. 275.) In contrast, Milich conducted no tests and made no inspection of the scene or the motorcycle. Thus, his opinions that contacting the PVC pipe probably did change the trajectory of the motorcycle and that a tripping accident did occur have no evidentiary support and are purely speculative. Accordingly, his opinions were insufficient to raise a triable issue of fact. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order denying summary judgment and to issue a new order granting the motion.
Petitioners are directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
Petitioners to recover costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.
