VAN METER v. AMERICAN MOTOR SPORTS ASSOCIATION (1991)

OPINION

Plaintiffs, James and Nance Van Meter, alleged defendants, American Motor Sports Association (AMSA), James A. Webb and Ronald Wayne Carter, negligently caused injuries to James Van Meter (Van Meter).   They alleged he suffered his injuries while he worked as a checkpoint captain, or flagger, during a motor vehicle race.   AMSA and Webb organized and operated the race.   Carter drove one of the vehicles involved in the accident.

The trial court granted summary judgment in favor of AMSA, Webb and Carter based on the doctrine of assumption of risk.

THE FACTS

The facts before the trial court supporting and opposing the motions for summary judgment reveal:

Van Meter was a self-taught checkpoint captain for off-road races and had been involved in off-road racing for 12 to 13 years.   He had been a checkpoint captain for AMSA about 5 years and had worked 20 to 30 races in that capacity.   Prior to working for AMSA, Van Meter worked as a checkpoint captain for another organization about 15 to 20 times.   In addition, he attended approximately 25 to 30 races when he was not a captain.   He had witnessed accidents at checkpoints, including one in 1983 in which one race car struck another from behind while the latter had stopped at a checkpoint.   Van Meter believed the checkpoint itself did not contribute to that accident.

As a checkpoint captain, it was his job to stop the race cars and mark them, usually by “stuffing” them with a piece of paper as they passed through his checkpoint.   There are generally three types of checkpoints with which Van Meter is familiar:  (1) “secret,” the location of which is unknown to the drivers;  (2) “rolling,” at which the drivers do not stop completely, but checkpoint workers record vehicle numbers and arrival times as the vehicles pass through;  and (3) “full stop,” at which the drivers come to a complete stop and checkpoint workers “stuff” markers in the vehicles and record the times.

A rolling stop requires only one person to operate.   In Van Meter's experience, a full stop usually requires four people:  one person one hundred yards ahead of the stop who waves a yellow flag to slow the vehicles;  one person at the stop who waves a red flag to stop the vehicles;  one person to “stuff” the vehicles;  and one person to record numbers and times.   The least number of people Van Meter had seen working a full stop was three, and in that case no one acted as a yellow flagger.

Van Meter seldom made the final decision about where to place a checkpoint, although he had been involved in that decision-making process many times.   In setting up a full stop checkpoint, factors he considered important were the “sophistication” of the stop, the number of people necessary to work the stop, visibility for drivers and checkpoint personnel, and whether the checkpoint was located at a natural slowing point in the race.   Man-made barricades could be used to slow traffic if natural barriers were unavailable.   Slow-down points were particularly significant to him after he witnessed the rear-end accident in 1983.   Visibility is usually better if a checkpoint is on level ground.

Van Meter talked with Webb approximately one month before the race in which he suffered injuries, and told Webb he could not be a checkpoint captain because he (Van Meter) had no crew.   Webb assured him a crew would be available by race day.

Van Meter did not take all his personal checkpoint equipment to the race because he did not know whether he would be operating a checkpoint.   Nevertheless, he took some equipment with him “just in case,” including a checkpoint box to hold his equipment, a glowing vest, flags, clipboards, pens, pencils, tape, and two signs, one designating “Danger,” the other informing drivers a checkpoint was one-fourth mile ahead.   Van Meter did not take with him his stop signs or barricades.

He arrived at the race course and received a map.   Webb told him his checkpoint would be in the Buzzard Bay area, the checkpoint would require a full stop, and the race operator would provide help for him.   Van Meter told Webb he would not work the checkpoint without help.   They did not discuss natural slow-downs.

Van Meter had never before been to Buzzard Bay.   He drove to the general location for the checkpoint.   The actual spot had not been marked on the map.   He decided to place the checkpoint at the intersection of two dirt roads where he could see the vehicles as they approached.   He could have placed the checkpoint differently to take advantage of a natural slow-down, but visibility would have been hindered.

Race cars began appearing shortly after he arrived at the checkpoint area.   He would not have had time to set up man-made slow-downs or barricades before the first cars arrived, even if he had possessed the proper equipment.   He did not have time to personally set up the one-fourth mile warning sign.   No flaggers had arrived when the first race cars reached the checkpoint.   Two people he thought might help were busy doing something else.   He asked spectators to help by recording car numbers and times.

For a number of reasons Van Meter did not consider converting the checkpoint from a full stop to a rolling stop, which would require only one person.   First, the drivers, who had been told the night before that a full stop would be awaiting them, would be angry and confused;  some might stop anyway.   Consequently, a change in the type of checkpoint would be unsafe.   Second, Webb told him his most important task was sticking dots (stickers) on the vehicles to mark them when they stopped at the checkpoint, rather than taking times and numbers.  (Sticking a dot on a vehicle requires the vehicle to come to a complete stop, and was a new, alternative method to “stuffing” vehicles.)   Third, Van Meter had never before seen a full stop checkpoint converted to a rolling stop checkpoint.   He had never really considered what he might do if he found a checkpoint to be undermanned.   As a result, Van Meter believed he had but one choice—a full stop checkpoint.

At the beginning of the race the cars were so close together Van Meter had insufficient time to wave the red flag and put on stickers.   The dots accumulated dust.   He discovered he had to drop the red flag on the ground in order to dust off the dots before sticking them to the cars.   This was the first time he had used the dot method of marking cars.   After the first vehicle arrived, he knew it was unsafe and he might be hurt if a second car hit the stopped one.   However, he discounted the chance of injury because he had been working at checkpoints for so many years.

Only four to five cars stopped at the checkpoint prior to the accident, which occurred when Carter's vehicle ran into a stopped vehicle.

Van Meter stated if he was expected to operate a checkpoint which he thought had been set up incorrectly by someone else, he would do so because he believed in doing what he was told to do.

DISCUSSION

INTRODUCTION

The rules governing the grant or denial of summary judgment, and subsequent appellate review of such a ruling, are well settled.

“Summary judgment is 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.)   It is a drastic remedy eliminating trial and therefore the moving party's declarations must be strictly construed and the opposing party's declaration liberally construed.  (Brandlin v. Belcher [1977], 67 Cal.App.3d 997, 999 [134 Cal.Rptr. 1].)   If there is any issue of material fact to be tried, summary judgment must be denied.  (D.E. Sanford Co. v. Cory Glass etc. Co. [1948], 85 Cal.App.2d 724, 726 [194 P.2d 127].)   Summary judgment may not be granted by the court based on inferences reasonably deducible from the papers submitted, if such inferences are contradicted by other inferences which raise a triable issue of fact.”  (Hepp v. Lockheed–California Co. (1978) 86 Cal.App.3d 714, 717–718, 150 Cal.Rptr. 408.)

“On appeal our review is limited to the facts shown in the documents presented to the trial judge in making our independent determination of their construction and effect as a matter of law.  [Citations.]  [¶]  A defendant moving for summary judgment has the burden of negating every alternative theory of liability presented by the pleadings.  [Citations.]”  (Bonus–Built, Inc. v. United Grocers, Ltd. (1982) 136 Cal.App.3d 429, 442, 186 Cal.Rptr. 357.)

In granting each defendant's motion for summary judgment, the trial court ruled:

“The moving parties have now established as a matter of law by the deposition testimony of Plaintiff that he had sufficient knowledge of the inherent dangers of acting as a check point captain prior to and during the time he undertook to set up the check point at the location he chose and thereafter operated it up to the time he was injured;  that he continued operating the check point even though he felt he had insufficient help to operate it safely;  that he was under no legal compulsion to remain in an unsafe place doing the check point captain job.”

ANALYSIS

Prior to adoption of comparative fault, the doctrine of assumption of the risk was long described as follows:

“The defense of assumption of risk ․ will negative liability regardless of the fact that plaintiff may have acted with due care.  (See Prosser on Torts [1941], p. 377.)   It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk.  (See Rest., Torts, § 893.)   Where the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk, ․”  (Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161–162, 265 P.2d 904.)

However, with the advent of comparative fault in California (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226), the clear survival of the doctrine has been the subject of controversy, at best.   Many recent opinions and articles have concluded the status of assumption of risk has reduced itself to a battle of “Segoviano” ¹ versus “Ordway,” ² a jurisprudential heavyweight prizefight, the winner of which is still undetermined.³

In our case, plaintiffs, in part, urge us to adopt Segoviano, a previous opinion of this court, and hold assumption of the risk not to be a defense to their claims;  defendants, on the other hand, urge us to adopt Ordway, and uphold the trial court's ruling that assumption of the risk bars any recovery against them.   We do neither, because we conclude the facts of this case take us one step beyond the facts of either Segoviano or Ordway and require additional analysis.   In doing so, we will conclude the trial court erred when it granted defendants' motions for summary judgment.⁴

 We first note that neither this case nor most of the cases on the subject present an express assumption of risk question.   When a plaintiff expressly agrees or contracts not to hold a defendant to a particular duty of care, plaintiff is barred from recovering for an alleged breach of that duty.   (See Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226;  Frizell, supra, 16 Western St.U.L.Rev. at p. 629.)   That is the easy part, and now for the more difficult.

If assumption of risk is to be applicable in a particular case, and a plaintiff has not expressly agreed to absolve the defendant from the failure to fulfill a duty of care, the question is whether the facts bring the case within the parameters of an implied assumption of risk.   In other words, does the law impose upon plaintiff an agreement to assume a particular risk because of plaintiff's conduct.

 The critical inquiry that must be made in each case is, “What is the particular risk plaintiff assumed?”   Most, if not all, of the cases which have dealt with implied assumption of risk have been cases in which the defendant has created a particular set of circumstances which have inherent dangers, and the plaintiff has knowingly proceeded with activity involving those circumstances.   This is the so-called “primary assumption of risk.”  (Frizell, supra, 16 Western St.U.L.Rev. at p. 630.)   By taking part, a plaintiff is considered to have relieved a defendant of any duty of care if defendant has provided the circumstances in a manner normally to be expected by a participating plaintiff.   The sports participation cases, the sports spectator cases, and the employment cases frequently fall within this ambit.  (Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 202 Cal.Rptr. 900;  Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 46 P.2d 144;  Lipson v. Superior Court (1982) 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822.)   Indeed, the facts of Segoviano and Ordway bring them within this group of cases, as we shall see.

In Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the plaintiff suffered injuries in a flag football game.   An opposing player committed an illegal maneuver by pushing the plaintiff.   The plaintiff sued, among others, the sponsor of the game, defendant Stanislaus County Housing Authority.   The facts revealed the housing authority did nothing more than conduct a normal flag football game, with all of the attendant dangers inherent in such an event.   Defendant did nothing to create any hazards greater than those always present during such an event.

In Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, the plaintiff, a professional jockey, suffered injuries during a race.   Two other horses collided, throwing one of those horses into the plaintiff and her horse.   The plaintiff sought recovery from the owners, trainers and jockeys of the other two horses.   The race was conducted as any horse race is customarily conducted, with the inherent dangers normally associated with such a race.   Segoviano and Ordway both involved sporting events conducted in the manner such events customarily occur.

The baseball spectator cases in which the plaintiffs were hit by foul balls likewise fall within the group of cases in which a defendant has done nothing more than create circumstances that are normal for the particular activity.   (Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725, 46 P.2d 144;  Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 229 Cal.Rptr. 612.)   The defendants simply provided a baseball game in the normal manner in which such games are conducted.   By doing so, they satisfied their duty of care toward anyone attending the games.   As Frizell notes, the issue really is not one of assumption of risk (which is a defense overcoming a defendant's failure of a duty of care toward a plaintiff), but is simply one of no duty on the defendant's part.

 Turning now to the case before us, had the facts shown without dispute that race conditions at the Buzzard Bay checkpoint were those of a normal race, the trial court's ruling would have been correct.   Van Meter, with his extensive experience in off-road racing, would be held to have assumed the risk of injury from the hazards of operating the checkpoint.   Or, more accurately, defendants, as a matter of law, would have fulfilled their duty of care to participants, helpers and spectators to provide a race under normal and expected circumstances, even though those circumstances created certain dangers inherent in any such race.

But a rational trier of fact could well determine the conditions Van Meter faced were not those of a normal race.   A trier of fact could find Van Meter did not have ample time to arrange his checkpoint.   Race vehicles began to arrive at the checkpoint soon after he arrived, thus depriving him of time to set up correctly.   Webb promised him the help of others, yet that help did not arrive.   When cars approached the checkpoint, he still expected help to arrive.   The hazards presented by these circumstances may be found to be other than those normally expected during the running of an off-road race or operating a checkpoint.

Thus, the case becomes one in which plaintiff undertook to participate in defendants' activity knowing there were increased dangers—hazards not normally created during an off-road race.   This is the so-called “secondary assumption of risk.”  (Frizell, supra, 16 Western St.U.L.Rev. at pp. 630–631.)   Without question, Van Meter knew he did not have a four-person checkpoint crew, knew he had not personally inspected placement of a quarter-mile warning flag, knew there were no man-made slow-down barriers, and knew race cars were approaching before the checkpoint could be set up correctly.   Nevertheless, he chose to operate the checkpoint.

Whether Van Meter voluntarily assumed the risk of these additional hazards, and, if so, whether his choice was reasonable or unreasonable under the particular circumstances are questions for the trier of fact.   Because these questions cannot be answered as a matter of law, the summary judgment is erroneous.   We recognize our conclusion that reversible error occurred renders the balance of our discussion obiter dictum.   However, we continue in order to aid the trial court with further proceedings, including jury instruction.

 If the trier of fact determines Van Meter's participation as a checkpoint captain under the circumstances was involuntary, the doctrine of assumption of risk would have no application.   The trier of fact could so find if it believed the increased risks came to Van Meter's attention without sufficient time for him to make a rational decision whether or not to continue his participation in light of the potential danger to race drivers and others if he abandoned the checkpoint.

 On the other hand, if the trier of fact determines Van Meter voluntarily proceeded with his activities in spite of the hazards as they existed as the race began, which included the dangers inherent in any off-road race and the added dangers that arose at this particular checkpoint, then the question of fact becomes whether Van Meter acted reasonably or unreasonably.   If he acted unreasonably, all authorities, including Segoviano and Ordway, agree the issue of liability should be governed by the principles of comparative fault.  (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 826, 119 Cal.Rptr. 858, 532 P.2d 1226;  Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 103, 243 Cal.Rptr. 536;  Segoviano v. Housing Authority, supra, 143 Cal.App.3d at pp. 174–175, 191 Cal.Rptr. 578.)

If, however, the trier of fact finds Van Meter's participation in the race as a checkpoint captain to be reasonable, what is the relationship between the parties regarding liability?   Our options are three.   First, we could hold Van Meter's participation was reasonable, he acted without fault and thus he should recover in full.   Second, we could hold that by his conduct Van Meter relieved defendants of any duty of care to him for injuries caused by any or all of the dangerous conditions.   Third, we could hold that to the extent Van Meter's injuries were caused by inherently dangerous conditions, his recovery should be barred;  to the extent the injuries were caused by dangerous conditions not inherent in an off-road race, no defense arises.   Under this third analysis, injuries caused by an inherently dangerous condition present a case of “primary” assumption of risk.

While the first and second options present choices alluring by their simplicity (full recovery or no recovery) we believe the third option most accurately expresses what realistically is the expectation of the parties.

It is widely accepted that certain activities, although presenting certain dangers, are desirable.   The dangers these activities commonly present are conditions which should be known to a potential participant and to which the potential participant can thoughtfully decide whether or not to become exposed.   This, of course, is the rationale behind the application of the assumption of risk defense in the sports participation, spectator and employment cases.   The social utility of certain activity outweighs its elimination or curtailment that would occur if the activity provider were subject to liability for injuries caused by dangerous conditions common to the activity.   We have simply restated the reasons for barring recovery in the primary assumption of risk cases.

As for the conduct of one who makes available an activity, we see no purpose in abrogating his duty to provide a set of circumstances which comply with what participants come to expect.   We cannot justify a rule that would relieve a defendant of a duty not to create hazards beyond those normally associated with the particular activity.   These added hazards create the so-called “secondary risk.”

 Thus, we conclude, if the trier of fact finds the activity in which plaintiff voluntarily participates presents dangers normally associated with the activity (primary) and other dangers beyond those normally associated with the activity (secondary), the trier of fact must also determine whether plaintiff's injury was proximately caused by the inherent dangers only, the added dangers only, or some combination of both.   If dangerous conditions inherent in the activity caused all of the injury, assumption of risk is a complete defense;  if dangerous conditions not inherent in the activity caused all of the injury, assumption of risk is not a defense;  if a combination of both types of dangerous conditions caused the injury, the trier of fact must determine the extent to which each caused the injury and apportion its award accordingly.

DISPOSITION

We reverse the judgment and award costs on appeal to appellants.

FOOTNOTES

1.   Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578.

2.   Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.

3.   The California Supreme Court has granted review in Ford v. Gouin (1990) 217 Cal.App.3d 1606, 266 Cal.Rptr. 870 and Harrold v. Rolling J Ranch (1990) 218 Cal.App.3d 36, 266 Cal.Rptr. 734.

4.   We will refer numerous times to Frizell, Assumption of Risk in California:  It's Time to Get Rid of It, 16 Western State University Law Review (1989) 627.   We have borrowed from it extensively because we find it to provide an understandable and systematic method of analyzing questions of assumption of risk in California.

STONE (Wm. A.), Acting Presiding Justice.

VARTABEDIAN, J., and FRANSON,* J., Assigned, concur.