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Sacramento, CA
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Edited Date/Time
5/13/2017 6:28pm
Rosencrans v. Dover Images, LTD., 192 Cal. App. 1072 (2011)
So, background, I do releases for various folks from time to time, and am updating one for a non-moto activity. Generally, in California, there is good law on assumption of risk in motorsports, and good law that folks offering recreational activities can effectively use releases to protect themselves from claims by participants, including claims that the organizer was negligent in some manner that caused or contributed to an injury. There's good discussion of that history in the case.
Contrary to popular opinion, releases can ~ in California, at least ~ be effective for defense against claims, and California law allows parents/guardians to execute releases on behalf of minors (unlike the brouhaha about that issue in Florida a few years back).
The exception to the rule allowing a release of claims against future negligence is that releases cannot extend to acts or omissions beyond ordinary negligence. Pre-activity releases cannot waive claims for gross negligence (as well as claims alleging intentional or reckless conduct). The difference between gross negligence and ordinary negligence may seem like a word-play, and to some extent it is. Every negligence case is based of there being a duty of care between the parties, which one person breached by failing to act with due care. Gross negligence requires pleading and proving that the breach of care was extreme. There are cases that illustrate that distinction, so it isn't as easy as it may seem for a plaintiff to plead around a release by alleging gross negligence, particularly in high risk sports.
That brings us to this case, which arose out of an incident at Starwest during a practice evening. A rider fell on the blind side of a jump and, after a period of time, was hit by two bikes. There was a flagging station at the jump, but it was not manned. Rather, the track had one flagger present at the time, who was located elsewhere and could not get to the location in time to warn away the oncoming riders (you will note in the discussion that the fallen rider took his own sweet time to get out of the track, but that likely would present an issue of contributory negligence at a later stage of the proceedings).
The case was decided at the summary judgment stage; in other words, there had been discovery taken and the track had filed a motion claiming that based on the facts both parties were in agreement on, there was no question of fact left for a jury to decide and the judge could rule for the defendant based on the release. The trial court granted the motion, but the appellate court disagreed and reversed.
There are some things that are interesting/instructive here as to releases in the MX context; I am offering them without making any judgment on them, but because you might want to discuss how they relate to managing safety in the sport.
1) The decision turned on the failure of the track to staff flaggers at all stations during a practice session. As I read it, the court held as a matter of law that a public motocross track's duty of care to its participants includes staffing flaggers at jumps or other blind sections any time riders are on the track.
2) The court held that there was triable issue (in other words, a jury had to decide the fact) whether the failure to staff a flagger at the jump was gross negligence. The court based this on two primary pieces of record evidence. The first was testimony from a motocross "safety expert" that it was common practice for tracks to staff flaggers at both races and practices, and that failing to do so was "'inexcusable, a blatant disregard for riders' safety, and criminal.'" The second bit the court relied upon was the Brett Downey Safety Foundation Instruction Manual For Caution Flaggers," which provided that "Flaggers must remain at the flag station at all times when competitors are on the course."
Takeaway, especially for non California tracks where the release laws may not be as favorable as they are in California: if you operate a public track and take money from riders, you will get hung if you do not fully staff flaggers during practices as well as race days. My impression is that the track would have prevailed based on the release if the flagger had been at the station. I'd also speculate that if there had not been a designated flagging station there (unoccupied), then the issue of should there have been a flagger at the location probably (not certainly) would have been one of ordinary negligence subject to the release.
Anyway . . . it's the offseason. Carry on.
So, background, I do releases for various folks from time to time, and am updating one for a non-moto activity. Generally, in California, there is good law on assumption of risk in motorsports, and good law that folks offering recreational activities can effectively use releases to protect themselves from claims by participants, including claims that the organizer was negligent in some manner that caused or contributed to an injury. There's good discussion of that history in the case.
Contrary to popular opinion, releases can ~ in California, at least ~ be effective for defense against claims, and California law allows parents/guardians to execute releases on behalf of minors (unlike the brouhaha about that issue in Florida a few years back).
The exception to the rule allowing a release of claims against future negligence is that releases cannot extend to acts or omissions beyond ordinary negligence. Pre-activity releases cannot waive claims for gross negligence (as well as claims alleging intentional or reckless conduct). The difference between gross negligence and ordinary negligence may seem like a word-play, and to some extent it is. Every negligence case is based of there being a duty of care between the parties, which one person breached by failing to act with due care. Gross negligence requires pleading and proving that the breach of care was extreme. There are cases that illustrate that distinction, so it isn't as easy as it may seem for a plaintiff to plead around a release by alleging gross negligence, particularly in high risk sports.
That brings us to this case, which arose out of an incident at Starwest during a practice evening. A rider fell on the blind side of a jump and, after a period of time, was hit by two bikes. There was a flagging station at the jump, but it was not manned. Rather, the track had one flagger present at the time, who was located elsewhere and could not get to the location in time to warn away the oncoming riders (you will note in the discussion that the fallen rider took his own sweet time to get out of the track, but that likely would present an issue of contributory negligence at a later stage of the proceedings).
The case was decided at the summary judgment stage; in other words, there had been discovery taken and the track had filed a motion claiming that based on the facts both parties were in agreement on, there was no question of fact left for a jury to decide and the judge could rule for the defendant based on the release. The trial court granted the motion, but the appellate court disagreed and reversed.
There are some things that are interesting/instructive here as to releases in the MX context; I am offering them without making any judgment on them, but because you might want to discuss how they relate to managing safety in the sport.
1) The decision turned on the failure of the track to staff flaggers at all stations during a practice session. As I read it, the court held as a matter of law that a public motocross track's duty of care to its participants includes staffing flaggers at jumps or other blind sections any time riders are on the track.
2) The court held that there was triable issue (in other words, a jury had to decide the fact) whether the failure to staff a flagger at the jump was gross negligence. The court based this on two primary pieces of record evidence. The first was testimony from a motocross "safety expert" that it was common practice for tracks to staff flaggers at both races and practices, and that failing to do so was "'inexcusable, a blatant disregard for riders' safety, and criminal.'" The second bit the court relied upon was the Brett Downey Safety Foundation Instruction Manual For Caution Flaggers," which provided that "Flaggers must remain at the flag station at all times when competitors are on the course."
Takeaway, especially for non California tracks where the release laws may not be as favorable as they are in California: if you operate a public track and take money from riders, you will get hung if you do not fully staff flaggers during practices as well as race days. My impression is that the track would have prevailed based on the release if the flagger had been at the station. I'd also speculate that if there had not been a designated flagging station there (unoccupied), then the issue of should there have been a flagger at the location probably (not certainly) would have been one of ordinary negligence subject to the release.
Anyway . . . it's the offseason. Carry on.
A track that is currently ran, but when ran by previous owners had the same issue almost; they wouldn't run practice without a meatwagon or a full track of flaggers. No flaggers? Boom, the track would go cold and they'd kick every one off.
Most practice day's I've attended here in AZ have had zero or minimal people with a flag and if I ran a track all my Flag stations would be mobile and removed during non race day events or based on number of flag men.
Some of these differences become clearer in specific fact situations, but generally the types of conduct giving rise are the following based on the legal duty not to harm another. Note that some relationships do not implicate a duty of care; for example, a track owner has no duty of care to eliminate the risks inherent in motocross; the owner does, however, have a duty not to increase the risks inherent in the sport.
Loosely:
1) Ordinary negligence: I have a duty of care and some act breaches that duty and unintentionally harms another. California law allows releases against claims for future negligent acts or omissions.
2) Gross negligence: What I did was such an extreme departure from the duty of care that it gives rise to a higher level of culpability, and claims for such breaches are not covered by releases against claims for future negligent acts or omissions.
And example of the difference here is a case where some kids were killed in a car accident on a team trip when their driver tried to pass traffic and hit another car head on. The court enforced the release of liability because although the driver had breached her duty of care in not waiting until it was safe to pass, the facts that would support an extreme departure from the duty of care ~ driving at a high rate of speed, racing other vehicles ~ did not exist beyond the simple error in judgment.
3) Reckless or wanton acts: I don't intend to harm you, but that harm is so natural and inevitable that I acted with conscious disregard of my duty to avoid harming another. Again, releases don't cover such conduct.
4) Intentional torts: I acted intending to harm you. And again, releases don't cover such conduct.
Generally, a person can be subject for punitive damages for 3 and 4, and may be subject to punitive damages for 2, but cannot be subject to punitive damages for 1.
The Shop
Nice.
Thanks F to the E
What I do think is clear about this case, which is a published decision and available as persuasive authority in any court even though it is applying specific California law principles, is that commercial tracks are exposing themselves to liability if they don't have flaggers any time more than one rider is on the track, and that if the track builds flagger stands, not staffing a stand may be an admission that a flagger should have been in that location and, under this case, prima facie evidence of a breach of the duty of care. If I was in a position to advise tracks or a track's insurer ~ and I am not ~ that would be my conservative observation of the risk management issues, right or wrong in our minds as riders.
Or would that even matter ?
But the question you raise is a pivotal one, and especially so where the courts analyze the issue as the intersection between private rights of contract and public policy interests in having people, particularly commercial operators, exercise due care to prevent harm to others. The court here pretty clearly acknowledged that getting hit by another rider is a risk inherent in the off road motorcycling, but concluded that the standard of care in the closed course motocross industry was to provide flaggers to mitigate that risk even if the risk could not be eliminated altogether without fundamentally diluting the nature of the sport of motocross. Indeed, the track itself had a flagger position at that location. Accordingly, the court felt it could not dispose of the case by holding there was no duty at issue.
Also note that there may not be liability for harm even where a duty exists and there is a breach of the duty. A plaintiff has to prove his injury was caused by the breach and not some intervening cause, including his own contributory negligence. Here the court notes the guy got up right away but stayed on the track, on the downside of a blind jump, for another 30 seconds. We don't know any more about the circumstances and his ability to move (or even really the magnitude of his alleged injuries). A jury might decide the rider had the time and ability to get off the track out of the way. But that's not a duty issue, it's a causation issue, and that issue was going to the jury as a question of fact.
There's a earlier case cited in this Dover Images case that is very good on off road motorsports liability, I haven't read it for awhile but it concerned open country/off road and maybe dunes riding, where things are a lot more open ended than a commercial closed course MX track holding a race or open practice.
Seriously, you can pile enough variable after variable on hypothetical to fill three weeks of a 1st year torts class just discussing this case.
What I do think is that we often lose sight of the forest for the trees trying to split hairs on what is acceptable and what's not (how's that for piling on metaphors, if not mixing them?). Most of us have pretty solid ideas of what a track should do to make its operations safe. Flaggers have been a part of that as long as I've been exposed to motorcycling, which goes back to the 60's. Often the decisions aren't made in the context of what's adequate for safety; many times we know and there's no real argument about that. Instead, decisions get made on the basis of what it's going to cost to do what we pretty well accept ought to be done. That's a pretty risky position to act from.
I would guess especially in California not following these rules could result in a huge loss by a Track owner and result in one of these experts testifying against you.
Track Owners / Promoters
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Instructional DVD For Caution Flaggers
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Caution Flaggers – Must be onsite at every race and every practice. View and understand the Instructional DVD For Caution Flaggers.
Supervised Practice – An individual onsite to watch the practice sessions and split practice. Practices can be split by minis, which are 50′s, 65′s, 85′s, and 150F”s for 20 minutes and big bikes, which are 125′s, 250′s and 450′s for 30 minutes. The individual will be watching for dangerous sections of the track and/or dangerous situations. They will be able to identify whether the track needs prepping and/or watering.
EMT – Must be onsite at every race and every practice.
Entrance and Exit Signs – A posted sign for entering the track and exiting the track in a clearly visible position. This allows riders to identify were they can enter and exit the track. The riders are not to enter and exit anywhere on the track, except for posted area.
Fenced Track – Track must be fenced to separate the track from the pit area and spectators.
Banners – Track must have banners to outline the track. This allows the rider to identify the borders of the track. It will also prevent riders from cutting across the track and entering and exiting were it is not safe.
Track Prep – Keep track watered to eliminate dust. Keep track groomed to prevent troubled spots on the track.
Safety Gear – Riders must wear the appropriate safety gear at all times. Helmet, Boots, Pants, Jersey (Long Sleeve), Goggles, Gloves, Chest Protector and Neck Collar/Brace.
No Minors On The Track – No spectators under the age of 18 is allowed on the track at anytime race and/or practice.
Jim Downey – Chairman
Kenny Morris – Co-Chairman
Barbara Paluzzi – Treasurer / Director of Operations
Steve Aldaco – Legal Advisor
Ricky Rickords – National Safety Advisor
Buddy Antunez – Local Safety Advisor
Holly Soto – Event Coordinator
Safety Advisory Panel
Jeff Emig
Tomac Family
Jeff Ward
Troy Lee
Mike Paluzzi
DJ Mendenhall
Eddie Casillas
Dr. Chris Alexander
Ken Gilbert
Larry Morton
Donna and Freddie Edwards
Scott Parkinson
But it was a different era, for sure.
One dude swapped on the landing and slid-out, but was unfortunately landed on and run over by some other bikes.
When I went off the jump, there was a war-zone scene of bikes and bodies covering the track. Luckily I used my super air-scrubbing skills and jumped safely off the track.
Anyway, the lawyer had a different angle on this one: He heard there was a dual sport bike on the track that may have been caught up in the carnage. He was contacting every witness he could locate to collaborate or identify the dual sport rider. He was going to pursue the dual-sport's insurance coverage and make a claim to cover the victim's medical costs.
As far as the case FTE posted- I can see where a judge or jury could pivot on the "blind spot without flagger" scenario. The blind spot tends to take the responsibility from the participant and place it on the facility. If you don't know what's there, how can you attempt to avoid it? The problem is- a blind spot on the track is quite subjective. A 6-foot adult on a full sized bike has a much better line of sight than a 9-year old on a 65cc bike.
wonder what the laws are like here..
People in Texas that participate in MX are white trash and nobody gives a shit what happens to them.
Anyone that's ever raced knows that your concentrated line of sight is typically 5 to 20 feet in front of you and directly at the ground. Therefore flags need to be waved 2 to 3 feet off the ground, max. I've seen flaggers waving flags 2 feet over their head, eight feet in the fucking air. Total joke.
Pit Row
This is pretty much the norm here now since the Health and Safety Executive have enforced it and i for one am happy to pay a little bit extra for the service aswell as on site medics.
Is there a difference between race day practice and non race day practice?
To the other poster immediately asking whether the case addressed practice at a race or a practice day, the case is clear that it involved a pure non-race day practice session. Note also that it held that the release and the circumstances by which it was obtained were held valid as to general negligence claims. The case is worth a read; don't rely on my summary.
The "tracks can't afford it" argument (or reality) is, in the real world of liability risk, not the proper way to look at it. Can't afford to satisfy the duty of care isn't a defense. The fact is that whatever it takes in a commercial track business to exercise due care is what is required of the tracks, and whatever those costs are should be passed through to the riders who choose to use that track. That will certainly increase the track prices, but it is what it is. It's not any different from having to get insurance and passing that cost through. The riders then realize the real cost of operating a track, risk and all. And other than the fact that no one wants to pay more, there really isn't a legitimate objection if you want to support and keep local tracks open.
Note that this discussion is solely about commercial public tracks, not the track that I built and my select buddies can come if they are invited, or "private club" arrangements that limit access to members. There are liability issues in those situations, but they generally play out differently.
Post a reply to: So, here's an interesting court decision on track liability