Government Liability Update

Release for Charity Bicycle Ride Is Complete Defense against Dangerous Condition Liability

Update:  the California Supreme Court granted review of this case on May 15, 2024.

In Whitehead v. City of Oakland, published February 13, 2024, the First District Court of Appeal, Division 3 affirmed summary judgment for the defendant city.  The plaintiff participated in a multi-day group bicycle ride fundraiser from San Francisco to Los Angeles.  The plaintiff rode in a 50-mile training ride.  Before the ride, the plaintiff signed a release in which he expressly assumed all risks associated with the event, including using public streets where hazards such as broken pavement may be present. The document also released, waived, forever discharged, and covenanted not to sue the releasees from claims that may arise or result from the plaintiff's participation in the event.  The release defined the releasees as including the owners/lessors of the course or facilities used in the event. During the training ride, the plaintiff hit a large pothole, flipped over his handlebars, and suffered injury.  The plaintiff sued the city for dangerous condition of public property.  The trial court granted the city's motion for summary judgment, on the ground that the plaintiff's execution of the release barred his claim.

On appeal, the plaintiff argued that the release was invalid because it affected a public interest, and was thus invalid under Civil Code section 1668.  Case law establishes that private agreements made in the recreational sport context releasing liability for future ordinary negligence do not implicate the public interest and therefore are not void as against public policy.  In particular, bicycle racing is not sufficiently affected with the public interest so as to void clear and unambiguous exculpatory clauses.  These cases apply here, because the cycling event was a nonessential sports activity that did not affect the public interest.  The public interest in maintaining and providing public roads does not change this conclusion, because the focus is on whether the transaction for which the release was given is one that affects the public interest, not the allegedly negligent conduct by the party invoking the release.  The plaintiff also argued that if the release is enforceable, it could not absolve the defendant of liability for gross negligence.  But the plaintiff failed to raise a triable issue of gross negligence.  The plaintiff pointed to evidence that allegedly showed the city was missing data that would help prioritize repairing or repaving bikeways yet failed to take steps to verify its data were complete or obtain additional data.  But evidence that a city employee suspected underreporting of data concerning falls or collisions based on his personal observations does not constitute evidence that data material to the issue of gross negligence actually existed.  The speculative argument did not create a triable issue as to whether the defendant's conduct amounted to gross negligence.  The expert's opinion that the city should have inspected the street more frequently because it showed signs of "alligator cracking" and had patched a pothole in the area did not raise a triable issue of gross negligence, because conduct demonstrating the failure to guard against, or warn of, a dangerous condition typically does not rise to the level of gross negligence.  The court also rejected the plaintiff's argument that the city had increased the risk of injury on the roadway by allegedly misprioritizing service requests to fill potholes.

Field-Trip Immunity Does Not Immunize Community College from Liability for Dangerous Condition of Property That Injures Member of Visiting Athletic Team

In Anselmo v. Grossmont-Cuyamaca Community College District, published August 3, 2018, the Fourth District Court of Appeal, Division 1 reversed  dismissal of the plaintiff's lawsuit on demurrer.  The plaintiff was a member of a community college women's volleyball team.  The team traveled to the defendant district's community college's campus to participate in an intercollegiate beach volleyball tournament.  The plaintiff alleged she was injured when she dove into the sand on the volleyball court and her knee hit a rock.  She sued the district for maintaining a dangerous condition of public property.  The trial court sustained the district's demurrer based on the field trips and excursions immunity provided to community colleges by title 5, section 55220 of the California Code of Regulations.

The appellate court ruled that the immunity does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.  The immunity protected the plaintiff's college from liability for operating the excursion that brought the plaintiff to the defendant's campus, but it did not protect the defendant from allegedly violating its duty not to increase the risk inherent in the sport by creating a dangerous condition of public property.  Otherwise, the district could be held liable to a student of the district for a dangerous condition, but could not be held liable to a visiting athlete injured by the same condition.

Skateboarder Assumed Risk of Injury from Alleged Dangerous Condition of Public Property

In Bertsch v. Mammoth Community Water Dist., published June 1, 2016, the Third District Court of Appeal affirmed summary judgment in favor of the defendant water district in a wrongful death action.  The decedent and his brother, on vacation with their father, were cruising around a neighborhood on their skateboards for fun.  After coming to an intersection where their father planned to meet them, they pushed their way up an incline in the road so that they could come down the hill on their boards.  Neither wore a helmet.  The decedent came down the hill at speed on the wrong side of the road.  The front wheels of his board hit a gap between the road and a concrete collar around a manhole cover.  He was ejected, struck his head on the pavement, and eventually passed away from his injuries.  The plaintiffs sued the water district under Government Code section 835 for maintaining a dangerous condition of public property.  The trial court ruled that the decedent had assumed the risk of injury from skateboarding.

The appellate court agreed.  The decedent's actions in pushing himself up the hill and skating down the road, on the wrong side, at speed and without a helmet, showed that he was using the skateboard for enjoyment or thrill, rather than merely for transportation.  The primary assumption of risk doctrine therefore applied.  The court rejected the argument that the water district could be held liable for increasing the risk to the decedent, because the duty to avoid increasing the risk applies only to those who are in an organized relationship with the injured party in relation to the activity.  It did not hold the roadway or manhole cover out as an appropriate or safe place to skateboard.  The policy reasons behind the assumption of risk doctrine, the court ruled, favor its application here.