In Kim v. County of Monterey, published December 12, 2019, the Sixth District Court of Appeal, in a split decision, reversed summary judgment granted to the defendant county in a lawsuit based on dangerous condition liability. The county owns a raceway and co-manages it with a vendor. Professional racing standards require that racetracks maintain flat verges and run-off areas where users whose vehicles that make a mistake, suffer mechanical failure, or strike another vehicle may decelerate or regain control. Drainage ditches and sandbags are maintained at the racetrack during the rainy season to prevent erosion. They are removed during professional racing events. The vendor will remove the sandbags if a renter requests it. On the day of the accident, a company hosted a track day at the racetrack, at which individuals could ride motorcycles and autos at the track at speeds up to 140 miles per hour. The plaintiff signed a waiver before riding his motorcycle at the track. None of the users were warned of the sandbags, which were unmarked and the same color as the ground, placed in the safety zones. The plaintiff ran his motorcycle into a safety zone and hit a sandbag. The plaintiff alleged causes of action for dangerous condition and gross negligence. The county moved for summary judgment. In opposition to summary judgment, the plaintiff presented an expert declaration that placing the sandbags on the track was below the standard of care.
The appellate court majority evaluated the dangerous condition cause of action using negligence principles. It interpreted the gross negligence cause of action against the county as an attempt to plead around the county's affirmative defense of hazardous recreational use immunity under Government Code section 831.7, which the majority interpreted as a primary assumption of the risk defense. There was no dispute that the plaintiff was engaged in a hazardous recreational activity. The court ruled that the county owed a duty of care not to increase the risk inherent in racing on the track, which is essentially what plaintiff was doing in riding around the track at high speed. The plaintiff adequately alleged in his complaint that the presence of sandbags was not a danger inherent to the sport. The county did not carry its burden on summary judgment of producing evidence that it was. The county therefore failed to establish summary judgment based on lack of duty. The majority then found a triable issue of fact on whether the county breached that duty. The reasonableness of the steps taken to prevent erosion was an issue of fact. There was also a triable issue of fact on whether the presence of sandbags was an extreme departure from care that would support a finding of gross negligence. The paucity of accidents at the raceway did not remove these issues of facts. While the standards barring sandbags applied to professional racing, not amateur use, a reasonable trier of fact could find the standards relevant to safety standards at the track generally.
A dissenting justice opined that the majority was collapsing the distinction between ordinary and gross negligence; and that in light of the primary assumption of the risk doctrine, the undisputed facts established that the county and vendor were entitled to summary judgment.
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