MEEHAN, J.
Suzanne Rivera (decedent) competed in the Mariposa Women's Stage Race, a bicycling race coordinated and organized by respondents Velo Promo, LLC (Velo Promo) and USA Cycling, Inc. (USA Cycling). During the race, a support van operated by Velo Promo stopped to assist a rider and parked the vehicle in the lane of the road designated for the cyclists on a downhill, curved section of the course. As the support vehicle was stopped, a pack of riders from the next heat, including decedent, rounded the blind turn with only a few seconds to avoid the parked vehicle. Other riders in the pack avoided the vehicle by swerving into the opposite lane of the road, which was open to motor vehicle traffic traveling in the opposite direction. Decedent was not able to avoid the support vehicle, crashed and succumbed to her injuries. The heirs of decedent (collectively referred to as appellants) sued defendants Velo Promo, USA Cycling and Richard Ciccarelli (the driver of the support van) alleging a single cause of action for negligence.
The trial court granted defendants Velo Promo and Ciccarelli's (collectively referred to as respondents) motion for summary judgment. After independently reviewing the record, we conclude that there are triable issues of material fact whether respondents' actions increased the risk of injury over that inherent in the activity and, therefore, whether the doctrine of primary assumption of risk bars appellants' cause of action for negligence. Accordingly, we reverse the judgment.
"`Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.'" (Wilson v. 21st Century Ins. Co. (2007) 42 Cal.4th 713, 716-717.) We consider all the evidence in the moving and opposing papers, except evidence to which objections were made and properly sustained, liberally construing and reasonably deducing inferences from appellants' evidence, and resolving any doubts in the evidence in appellants' favor. (Id. at p. 717; Code Civ. Proc., § 437c, subd. (c).)
Velo Promo organized and conducted a three-day, competitive cycling race called the Mariposa Women's Stage Race starting on May 11, 2012. The event took place on two-lane unincorporated county roads in the Sierra Nevada foothills in the area surrounding Mariposa, California. It was an "`[o]pen course'" race in which the road used for the cycling race was not closed to other vehicular traffic. USA Cycling sanctioned and permitted the event, and provided the rule book setting forth the manner in which the race was to be conducted. Prior to entering into the race, decedent signed the "`2012 USA Cycling Competitive and Non-Competitive Event Release Form'" provided by race organizers. The release included an assumption of risk provision, acknowledging that cycling is an inherently dangerous activity and releasing respondents from negligence "`to the maximum extent permitted by law'" (capitalization omitted).
In the event scheduled on the last day of the race (May 13, 2012), the riders were placed in different heats based on skill and experience levels. Decedent was racing in the beginner heat with approximately 15 total participants. Before the race, the president of Velo Promo realized he needed a support vehicle driver. He found Ciccarelli about 20 minutes before the race and assigned him to drive a support vehicle behind the racers in the heat preceding decedent's. The interval between different heats of cyclists was two minutes.
Roughly three miles into the race, in a curved downhill section of road, a cyclist signaled to Ciccarelli that she needed assistance. Ciccarelli stopped, provided assistance, and the cyclist rejoined the race. Soon thereafter, the cyclist again experienced problems and signaled for assistance. Ciccarelli stopped the support van in the lane of travel less than 200 feet past a curve and on a section of road with a 9 percent downhill grade and prepared to assist the rider with a change of tire. He did so inside the blind curve unaware of the two-minute interval and that he could have pulled off of the road and stopped safely a relatively short distance ahead.
Before Ciccarelli could finish assisting the rider, cyclists from decedent's heat approached at speeds nearing 40 miles per hour. In order to avoid the support vehicle, many riders crossed the double yellow lines in the road and entered the opposing lane of traffic. Decedent was unable to avoid the support van, crashed and fell to the ground. Despite efforts otherwise, at least one other cyclist ran over decedent while she was lying on the roadway. Decedent died as a result of her injuries shortly thereafter.
Decedent's husband and minor children, as heirs to decedent, filed the instant wrongful death lawsuit alleging negligence against respondents. Appellants alleged that respondents were grossly negligent with respect to the supervision, control and training of the support van driver. They contend that Ciccarelli's actions of stopping the support van in the lane of travel in a downhill curved section of the racecourse resulted in a risk of injury to decedent beyond that inherent in the activity.
Respondents Velo Promo and Ciccarelli moved for summary judgment. They argued that the release of liability signed by decedent discharged respondents' liability or, alternatively, the undisputed facts proved that appellants' claims were barred by the primary assumption of risk doctrine. Appellants contended otherwise and asserted that there were triable issues of fact regarding whether respondents violated statutory law or were grossly negligent, making summary judgment improper. On March 5, 2015, the trial court granted the motion, resulting in the dismissal of the action. Appellants brought this appeal.
In opposition to the motion for summary judgment, appellants presented evidence to establish that there were triable issues of fact that made summary judgment improper. A fact sheet from USA Cycling indicated that it is a member-based organization comprising over 2,700 clubs and 62,000 members. USA Cycling sanctions over 3,000 events and manages 18 national championship events each year. A copy of USA Cycling's 2012 rules were presented. USA Cycling rules include the following: (1) the race director shall be responsible for specifying and directing the general aspects of the race and shall take acts reasonably necessary to promote the safety of participants and spectators (USA Cycling Rule 1G2); (2) that if there are multiple fields of riders in an event, the starting intervals should be chosen such that different groups do not overlap (USA Cycling Rule 3A2); (3) feeding stations and repair pits shall be located at points wide enough to allow passage of riders with one clear lane at all times (USA Cycling Rule 3A4); (4) support vehicles should be less than 1.6 meters in height (USA Cycling Rule 3C4(b)); (5) drivers of support vehicles shall keep to the right of the road and shall follow the rules of the road (USA Cycling Rule 3C4(h)); (6) should a support vehicle need to stop, it shall always pull off the road on the right side (ibid.); and (7) no supplies may be provided or sought from a vehicle during a hill climb or on dangerous bends or descents (USA Cycling Rule 3C5(b)).
Additionally, a 2012 memo from USA Cycling regarding course safety guidelines sets forth safety recommendations to race organizers. The memo advised not to use last-minute volunteers for support vehicle drivers, and that "[y]our drivers hold the riders' lives in their hands" and must be experienced both at driving a vehicle and driving a vehicle around cyclists. The memo further states that driver's licenses and insurance should be checked before the race, and that the drivers should be trained in their jobs.
Excerpts from the deposition of the manager and owner of Velo Promo, Robert Leibold, were submitted. He testified that all of the bicycle races that Velo Promo operates are held under permit from USA Cycling and follow the USA Cycling rules, including the race at issue here. Leibold selects support drivers, but did not have a direct role in training or supervising the drivers to ensure that they comply with the USA Cycling rules. Liebold decided to have Ciccarelli drive the support vehicle about 20 to 30 minutes before the start of the event.
Excerpts from Ciccarelli's declaration included his statements that when a support vehicle stops for a rider, the vehicle should be pulled as far off of the road as possible. However, Ciccarelli noted not to park in tall, dry grass to prevent starting a fire. While Ciccarelli was not aware of a rule stating the practice, in his experience, support vehicles stopped as close as reasonably feasible to the cyclist needing assistance. Ciccarelli was not aware of any rule from USA Cycling or Velo Promo to not provide supplies from a vehicle on dangerous bends or descents.
A participant in the race, Gale De Rosa, testified that the interval between different categories of riders at the event on May 13, 2012, was two minutes. There were roughly fifteen women competing in De Rosa and decedent's heat. The section of the road where the incident occurred was a double yellow zone, where cars were not allowed to pass due to the lack of visibility from the blind turn. When De Rosa saw the support vehicle parked in the road, she shouted a warning, stopped pedaling and steered to the left to allow the riders around her to have as much room as possible to avoid the vehicle. She did not apply her brakes to prevent the cyclists behind her from losing control and crashing. She had about two to three seconds from the time she saw the support vehicle to the time she passed it. She admitted that she did not follow the rules of the road when she crossed the double yellow line into the other lane to avoid hitting the support vehicle. At the time that she passed the support vehicle, De Rosa's speedometer on her bicycle indicated she was traveling at close to 40 miles per hour.
Had an oncoming car been in the other lane, De Rosa would not have had sufficient time to brake and she would have hit the support vehicle. She did not recall the driver of the support vehicle provide any warning or if the vehicle's warning lights were operating. De Rosa observed that the road dropped off sharply where the support vehicle was stopped, but that there was more road surface, shoulder area and driveways within one-half to three-quarters of a mile further down the road.
Appellants also provided the declarations of two experts. Peter King, an expert in motor vehicle collision and reconstruction, opined that the support vehicle was stopped and was visible from less than 200 feet when traveling in the direction of the cyclists during the event. John Howard, a bicyclist safety consultant, provided a declaration. In his professional experience, it is custom and a USA Cycling rule that support vehicles should always pull off of the road to stop, and that a support vehicle stopped in the road becomes an unnecessary and extremely dangerous hazard to participants by blocking the lane of travel. It is custom and a USA Cycling rule that supplies should never be provided during a hill climb or descent because of the limited visibility in such locations. Custom and USA Cycling rules dictate the use of support vehicles of 1.6 meters or less tall as larger vehicles create a hazard by inhibiting the visibility of the participants. He opined that it is imperative for the support vehicle driver to know the interval time separating each category of riders so that they know when to expect the next category to approach. Rules and custom also provide that all competitors and support vehicles must keep to the right of the centerline in an open course due to the hazard of entering a lane where traffic may be traveling in the opposite direction. Finally, it is customary for support vehicles to operate with lights and flashers on during a race.
Based on his experience, Howard opined that it is not uncommon to hold a race without a support vehicle and the lack of support vehicles does not affect the nature of the sport or have any relation to the physical exertion, skill, endurance, and or strength required by the participant. Howard found there was evidence that respondents violated many of the 2012 USA Cycling Rules, including failing to train the driver of the support vehicle to pull off of the road to stop, failure to instruct the support vehicle driver not to stop and park on a descent, failure to instruct the support vehicle driver not to stop after a blind turn, failure to ensure that the support vehicle's flashers were being used during the race, ignoring that the support vehicle driver was not familiar with the USA Cycling rulebook, failure to train the support vehicle driver on the course design, ignoring whether the support vehicle was of the recommended dimensions, failure to train the support vehicle driver where on the course repairs could be provided, failure to inspect whether the support vehicle driver had a clean driving record, failure to inform the support vehicle driver of the interval time between categories of riders, failure to train the support vehicle driver where supplies could be provided or sought from the support vehicle, and failure to train the support vehicle driver to follow the rules of the road. Howard believed that the conduct of Velo Promo was an extreme departure from the standard of conduct of race operators, which unnecessarily increased the risks of the participants of the race. In Howard's opinion, if it is not feasible to pull a support vehicle entirely off of the road to stop, the support vehicle driver must continue to a location where the vehicle can completely pull off the road.
An order granting summary judgment is reviewed de novo. (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813 (Biancalana).) As a practical matter, "`we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment.'" (Simmons v. Superior Court (2016) 7 Cal.App.5th 1113, 1124.) A motion for summary judgment is properly granted "if 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." (§ 437c, subd. (c); Biancalana, supra, at p. 813.) "From commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted (Aguilar); GoTek Energy, Inc. v. SoCal IP Law Group, LLP (2016) 3 Cal.App.5th 1240, 1245.)
A defendant moving for summary judgment must show that one or more elements of the plaintiff's cause of action cannot be established or show there is a complete defense to the plaintiff's cause of action. (§ 437c, subd. (p)(2); Aguilar, supra, 25 Cal.4th at p. 849.) Once the defendant meets this burden, the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense. (§ 437c, subd. (p)(2); Aguilar, supra, at p. 850 ["A burden of production entails only the presentation of `evidence'"].) "The plaintiff . . . shall not rely upon the allegations . . . of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action. . . ." (§ 437c, subd. (p)(2).)
In conducting our review, we must identify the issues to be considered on the motion for summary judgment, which are defined by the pleadings. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250 (Conroy).) As to each claim as framed by the complaint, "`"the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading."'" (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848 (Eriksson I).) We conduct an independent review of the record, considering all the evidence set forth in the moving and opposition papers, except evidence to which objections were properly made and sustained by the trial court, and all inferences reasonably drawn from the evidence. (§ 437c, subd. (c).) We view the evidence in the light most favorable to the party opposing summary judgment, liberally construing the opposing party's submissions and resolving all doubts concerning the evidence in favor of the opposing party. (Conroy, supra, at pp. 1249-1250.) "We must affirm a summary judgment if it is correct on any of the grounds asserted in the trial court, regardless of the trial court's stated reasons." (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.).) However, the standards applicable to appellate review of a summary judgment are "far different from . . . the substantial evidence test that often governs on appeal" so that, even if a trial court's evaluation of the evidence is reasonable, "`summary judgment cannot properly be affirmed unless a contrary view would be unreasonable as a matter of law. . . .'" (Faust v. California Portland Cement Co. (2007) 150 Cal.App.4th 864, 877.)
Respondents assert that the appeal should be dismissed as it was taken from a nonappealable order granting summary judgment rather than from the entry of judgment. The trial court granted defendants' summary judgment motion on March 5, 2015, and judgment was entered on March 16, 2015. Appellants filed the notice of appeal on the date judgment was entered, March 16, 2015. However, the notice of appeal refers to the summary judgment order entered on March 5, 2016, rather than the date of entry of judgment.
The California Rules of Court provide relief should a notice of appeal be filed prematurely. (Cal. Rules of Court, rule 8.104(d); Good v. Miller (2013) 214 Cal.App.4th 472, 475.)
At the summary judgment hearing, the parties have the opportunity to persuade the trial court and respond to its inquiries. (Reid v. Google, Inc. (2010) 50 Cal.4th 512, 531-532 (Reid).) The court considers the motion, any opposition to the motion, any reply, and all supporting papers submitted before the hearing, as well as arguments and evidentiary objections made at the hearing. (See § 437c, subds. (a), (b)(1)-(4); rules 3.1352, 3.1354(a).) Written evidentiary objections made before the hearing, as well as oral objections made at the hearing are both acceptable methods to avoid waiver. (Reid, supra, at pp. 531-532.) The trial court must rule expressly on those objections. (Id. at p. 532.) If the trial court fails to rule, the objections are preserved on appeal. (Ibid.)
As the trial court did not address the objections, there is no ruling to review. However, when the trial court fails to rule expressly on evidentiary objections, it is presumed that the objections have been overruled and the trial court considered the evidence in ruling on the merits of the summary judgment motion. (Reid, supra, 50 Cal.4th at p. 534.) The weight of authority is that evidentiary objections, including on summary judgment, are reviewed for abuse of discretion. (See People v. Waidla (2000) 22 Cal.4th 690, 717 (Waidla) ["Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence."]; Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 ["Although it is often said that an appellate court reviews a summary judgment motion `de novo,' the weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard."]; see General Electric Co. v. Joiner (1997) 522 U.S. 136, 141-142 [applying abuse of discretion standard of review to trial court's decision to exclude expert testimony at summary judgment stage].) Historically, this court reviews evidentiary rulings on summary judgment for abuse of discretion. (O'Neal v. Stanislaus County Employees' Retirement Assn. (2017) 8 Cal.App.5th 1184, 1198-1199 (O'Neal); Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.) Under an abuse of discretion standard, the party challenging the ruling (in this case, the presumed overruling of respondents' objections) has the burden to establish an abuse (O'Neal, supra, at p. 1199), and we will interfere with the lower court's judgment only if the party can show that no judge could reasonably have made the same judgment (ibid.).
Respondents' objections are directed towards John Howard's expert declaration. They assert that Howard's statements were not relevant because they had no tendency in reason to controvert the material facts, were based on inadmissible hearsay, lacked proper foundation, and that it was not proper to rely on expert testimony to address the legal question of duty regarding whether a particular risk is an inherent part of a sport. As the trial court did not address the objections, they are presumed to be overruled, and we will review the admission of the evidence for abuse of discretion. (Waidla, supra, 22 Cal.4th at p. 717.)
"Courts ordinarily do not consider an expert's testimony to the extent it constitutes a conclusion of law." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017 (Kahn).) However, trial courts are not precluded "`from receiving expert testimony on the customary practices in an arena of esoteric activity for purposes of weighing whether the inherent risks of the activity were increased by the defendant's conduct.' (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995, fn. 23; see also American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635-1637 [(Staten)].)" (Kahn, supra, at pp. 1017-1018.)
As stated by our Supreme Court, "Judges deciding inherent risk questions . . . may consider not only their own or common experience with the recreational activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment." (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1158 (Nalwa).) Thus, respondents' argument that inherent risks of an activity always present purely legal questions is not accurate and overly broad. "Although the risks inherent in many activities are not subject to reasonable dispute (e.g., being hit with a baseball during a game), the risks inherent in some activities are not commonly known." (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 608.) In such cases, expert testimony may assist the court in determining whether inherent risks of the activity were increased. (Kahn, supra, 31 Cal.4th at pp. 1017-1018.) "Trial courts deciding these questions on summary judgment should not be faced with determining the inherent risks of an unfamiliar sport while bereft of the helpful factual input of experts." (Staten, supra, 45 Cal.App.4th at p. 1636.) Accordingly, the trial court did not abuse its discretion in taking the declaration of appellants' expert into consideration in determining the inherent risks at issue here.
In addition to the fact that expert testimony may be used, respondents' objections that the testimony is based on inadmissible hearsay or that Howard lacked personal knowledge are likewise without merit. First, an "`expert may generally base his opinion on any "matter" known to him, including hearsay not otherwise admissible, which may "reasonably . . . be relied upon" for that purpose.'" (People v. Catlin (2001) 26 Cal.4th 81, 137; see Evid. Code, § 801, subd. (b).) Further, respondents' objections that Howard lacked personal knowledge or failed to present adequate foundation for his expert testimony are likewise rejected. Review of the pertinent records along with the expert's experience in the field of expertise can provide adequate foundation for expert opinions. (See People v. Edwards (2013) 57 Cal.4th 658, 708.) Howard states in his declaration that he reviewed pertinent documents and exhibits relating to the accident and relies upon over 30 years of experience as a cycling coach and bicyclist safety consultant. The trial court did not abuse its discretion in overruling evidentiary objections to the declaration. Howard's declaration is admissible and relevant to determine whether there are genuine issues of fact regarding whether inherent risks of the activity were increased.
At summary judgment, the trial court granted respondents' motion, finding that appellants' claim for negligence was foreclosed based on the release signed by decedent and the primary assumption of risk doctrine. Appellants do not challenge the fact that decedent signed the release, nor whether the release relinquishes liability for claims of negligence. Instead, appellants contend that there are triable issues of material fact whether respondents' conduct constituted gross negligence, and that the signed waiver and the primary assumption of risk doctrine do not bar such claims.
Ordinary negligence "consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm." (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-754 (Santa Barbara).) "`[M]ere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty,'" amounts to ordinary negligence. (Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48.) However, to support a theory of "`[g]ross negligence,'" a plaintiff must allege facts showing "either a `"`want of even scant care'"' or `"`an extreme departure from the ordinary standard of conduct.'"'" (Santa Barbara, supra, at p. 754.) "`"[G]ross negligence" falls short of a reckless disregard of consequences, and differs from ordinary negligence only in degree, and not in kind.'" (Gore v. Board of Medical Quality Assurance (1980) 110 Cal.App.3d 184, 197; see Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 881 (Anderson).) As explained below, appellants contend on appeal that there are genuine issues of fact as to whether respondents' conduct constituted gross negligence.
In the recreation and sports context, primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the injury is due to a risk that is inherent in an activity in which the plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308 (Knight); Nalwa, supra, 55 Cal.4th at p. 1154.) In Knight, the Supreme Court considered the application of the assumption of risk doctrine in light of the court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The Court distinguished between primary assumption of risk—i.e., "those instances in which the assumption of risk doctrine embodies a legal conclusion that there is `no duty' on the part of the defendant to protect the plaintiff from a particular risk"—and secondary assumption of risk—i.e., "those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty." (Knight, supra, at p. 308.) When applicable, primary assumption of risk "operate[s] as a complete bar to the plaintiff's recovery." (Id. at pp. 314-315.) In contrast, when applicable, secondary assumption of risk "is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." (Id. at p. 315.) Here, respondents assert that primary assumption of risk serves to bar appellants' claim.
"Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation." (Kahn, supra, 31 Cal.4th at p. 1003) The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. (Id. at p. 1008; Nalwa, supra, 55 Cal.4th at p. 1154.) Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity. (Nalwa, supra, at p. 1154; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162.)
In Knight, the California Supreme Court addressed the use of primary assumption of risk in the sports setting, explaining that certain dangers are often "inherent in the sport itself" and that defendants generally have no duty to protect a plaintiff from such risks. (Knight, supra, 3 Cal.4th at p. 315.) In outlining the doctrine generally, the Supreme Court used broader language, and later held that the doctrine is not limited to activities classified as sports, but applies as well to other recreational activities "`involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.'" (Nalwa, supra, 55 Cal.4th at p. 1156.) Other courts have reached the same result by applying a broad definition of "sport" to include physical but noncompetitive recreational activities. (E.g., Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221 [organized, noncompetitive group bicycle ride].)
In this case, respondents organized a competitive cycling race, and both parties concede that the primary assumption of risk doctrine applies. Accordingly, respondents only owed decedent the duty not to act so as to increase the risk of injury over that inherent in the activity. Primary assumption of the risk does not depend on whether the plaintiff subjectively appreciated the risks involved in the activity; instead, the focus is an objective one that takes into consideration the risks that are "`inherent'" in the activity at issue. (Knight, supra, 3 Cal.4th at pp. 316-317.) Because "certain dangers are often integral" to the activity itself, a defendant generally has no duty to protect a plaintiff from such risks. (Nalwa, supra, 55 Cal.4th at p. 1155.)
Respondents contend that the written release waived any liability to decedent. "While often referred to as a defense, a release of future liability is more appropriately characterized as an express assumption of the risk that negates the defendant's duty of care, an element of the plaintiff's case. . . . `"The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence." [Citation.]'" (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 (Eriksson II).) In a summary judgment motion, the defendant bears the burden of establishing the validity of a release "as applied to the case at hand." (Santa Barbara, supra, 41 Cal.4th at p. 780, fn. 58; see Eriksson I, supra, 191 Cal.App.4th at p. 856.) Appellants concede that the claims based on ordinary negligence may be barred in light of the release agreement signed by decedent. However, on appeal, appellants contend that claims based on gross negligence are not barred by the release agreement. (Santa Barbara, supra, at pp. 779-780.)
Respondents concede the point. A release cannot absolve a party from liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 750-751, 776-777.) In Santa Barbara, our high court reasoned that "the distinction between `ordinary and gross negligence' reflects `a rule of policy' that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary." (Id. at p. 776, quoting Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871.) A liability release, "to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable." (Santa Barbara, supra, at p. 751.) The issue we must determine here is whether, with all facts and inferences construed in appellants' favor, the conduct of respondents could be found to constitute gross negligence. If so, then it is a question of fact for the jury to determine whether the release in this case was unenforceable for that reason. Whether conduct constitutes gross negligence is generally a question of fact, depending on the nature of the act and the surrounding circumstances shown by the evidence. (See Santa Barbara, supra, at pp. 767, 781 [reasoning that whether the evidence showed lack of care sufficient to constitute gross negligence was a triable issue of fact]; see also, e.g., Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 554-556.) When reviewing summary judgment based on the absence of a triable issue of fact as to gross negligence, we must resolve every reasonable doubt in favor of the plaintiffs. (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1088.)
If a complaint alleges facts demonstrating gross negligence in anticipation of a release, the initial burden remains on the moving defendant asserting the release as a defense to produce evidence refuting the allegations constituting gross negligence. (Eriksson I, supra, 191 Cal.App.4th at p. 856; Jimenez v. 24 Hour Fitness USA, Inc., supra, 237 Cal.App.4th at p. 554; see Varshock v. Department of Forestry & Fire Protection (2011) 194 Cal.App.4th 635, 651 ["Where . . . an affirmative defense contains an exception, a defendant must also negate the exception as part of its initial burden on summary judgment if, but only if, the complaint alleges facts triggering potential applicability of the exception."]; see Conn v. National Can Corp. (1981) 124 Cal.App.3d 630, 639.)
In the present case, viewing the allegations of the complaint in the light most favorable to appellants, they have alleged sufficient facts to support a theory of gross negligence presented in the complaint. In cases involving a waiver of liability for future negligence, courts have held that conduct that substantially or unreasonably increased the inherent risk of an activity or actively concealed a known risk could amount to gross negligence, which would not be barred by a release agreement. (Anderson, supra, 4 Cal.App.5th at pp. 880-881.)
Appellants present just such an argument here. They allege that Ciccarelli was acting within the scope or agency of Velo Promo and his actions in stopping the support van on the course increased the risk of injury to decedent. The trial court further found that Ciccarelli did not engage in intentional misconduct, was not grossly negligent and did not create an unreasonable risk beyond that which might be expected in the sport of cycling in his operation of the support vehicle. The court stated "[t]he evidence presented in support of the motion clearly established the roadway where the accident occurred was in a descending and curving pattern and it would have been dangerous for Mr. Ciccarelli to park on the side of the road because of the ditch on the right side of the roadway."
In reaching its conclusion, the trial court failed to apply the appropriate legal questions. Rather than apply the appropriate standard applicable to summary judgment, the trial court analyzed the evidence and reached an ultimate conclusion that it would have been dangerous for Ciccarelli to pull off the roadway in that location and that he did not increase the risk to the cyclists. In doing so, the trial court failed to address the question before it on summary judgment: were there triable issues of material fact that would make the grant of summary judgment improper? (§ 437c, subd. (p)(2).) Much of the argument by respondents makes clear that factual issues exist. "[E]ven though the court may not weigh the plaintiff's evidence or inferences against the defendants' as though it were sitting as the trier of fact, it must nevertheless determine what any evidence or inference could show or imply to a reasonable trier of fact." (Aguilar, supra, 25 Cal.4th at p. 856.)
Respondents had no duty to protect decedent from "risks inherent in the sport itself" (Knight, supra, 3 Cal.4th at p. 315), "`where the risk cannot be eliminated without altering the fundamental nature of the activity'" (Nalwa, supra, 55 Cal.4th at p. 1156). However, if triable issues exist whether respondents' conduct substantially or unreasonably increased the inherent risk of the activity the grant of summary judgment is improper. (Anderson, supra, 4 Cal.App.5th at pp. 880-881.)
"[T]he nature of a sport is highly relevant in defining the duty of care owed by the particular defendant." (Knight, supra, 3 Cal.4th at p. 315.) "[O]perators, sponsors and instructors in recreational activities posing inherent risks of injury have no duty to eliminate those risks, but do owe participants the duty not to unreasonably increase the risks of injury beyond those inherent in the activity." (Nalwa, supra, 55 Cal.4th at p. 1162.) "[S]ome activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. In a game of touch football, for example, there is an inherent risk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm arising from a collision would work a basic alteration—or cause abandonment—of the sport." (Kahn, supra, 31 Cal.4th at p. 1003.) With regard to a ski resort, while it "has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort's negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant." (Knight, supra, at p. 316.)
In another example, "[t]he operator of a bumper car ride might violate its `duty to use due care not to increase the risks to a participant over and above those inherent' in the activity [citation] by failing to provide routine safety measures such as seatbelts, functioning bumpers and appropriate speed control, but does not do so by failing to restrict the angle of bumping. [¶] Any attempt on our part to distinguish between angles of collision that pose inherent risks and those that pose extrinsic risks would ignore the nature of a bumper car ride, an activity that gives its mostly young participants the opportunity to inflict and evade low-speed collisions from a variety of angles." (Nalwa, supra, 55 Cal.4th at p. 1163.)
As the race organizers, respondents had a duty to use care not to increase the risks to decedent above those inherent in the activity. Appellants presented issues of fact regarding whether the supervision and actions of the support driver increased the risks to the participants. For example, an inherent risk on an open course cycling event would be potential collisions with motor vehicles. In the instant race, the other lane of the road remained open to vehicle traffic and potential collisions with vehicles traveling in the other lane or entering or exiting the roadway was an inherent risk of the activity. However, the negligent operation and supervision of a support vehicle is not necessarily inherent in the activity. Appellants provided evidence that the use of a support vehicle is not required nor does the lack of a support vehicle change the nature of the sport.
Moreover, appellants have presented issues of fact with regard to respondents' conduct and failure to comply with USA Cycling Rules when operating the support vehicle. Issues of fact exist whether respondents violated several USA Cycling Rules, including not pulling the support vehicle completely off of the road, stopping on a descent, stopping directly after a dangerous bend, failure to train or provide the vehicle support driver with regard to the USA Cycling Rules or provide information specific to the race and course. The actions of respondents raise triable issues of fact whether respondents unreasonably increased the risks of injury beyond those inherent in the activity. (Nalwa, supra, 55 Cal.4th at p. 1162.)
Respondents present significant evidence supporting a conclusion that their actions were not grossly negligent and did not unnecessarily increase the risk to decedent. They claim Velo Promo had no duty to train or control the actions of Ciccarelli, as there was no special relationship between the two that imposed such a duty. (See McGarry v. Sax (2008) 158 Cal.App.4th 983, 995.) However, respondents allege as undisputed material fact that at the time of the accident Ciccarelli was acting in the course and scope of his agency with Velo Promo. Principals are responsible to third persons for the negligence of an agent. (See, e.g., Civ. Code, § 2338.) Accordingly, Ciccarelli is not a third party and there are triable issues of fact with regard to whether Velo Promo is liable for his actions. In a corollary argument, respondents claim that since Ciccarelli was a third party, he was a coparticipant in the race and held a lower standard of duty than that of an organizer or operator. As stated, by acknowledging that Ciccarelli was acting in the course and scope of his agency with Velo Promo at the time of the incident, Ciccarelli was bound by the duties of an operator not to unreasonably increase the risk of injury. (Nalwa, supra, 55 Cal.4th at p. 1162.)
Next respondents present extensive argument as to why it was reasonable for Ciccarelli to stop the support van where he did to provide assistance to the rider from the prior heat. Ciccarelli was aware that a rider needed assistance after a downhill curve and considered various factors before stopping, including the USA Cycling Rules regarding stopping a support vehicle on a curved or downhill section and pulling the vehicle completely off of the road, that there was no suitable shoulder on which to pull off of the road near the disabled rider, that there was a fire risk from pulling over onto an area with tall grass and that he was expected to stop close to a racer in order to provide prompt assistance. Respondents also contend that Ciccarelli was knowledgeable as to how to operate a support vehicle and had done so for Velo Promo over 100 times before and, therefore, he was not a last-minute volunteer. Regardless whether the support vehicle had its flashers on or was larger than the size specified by the USA Cycling Rules, respondents allege that there is no proof that those issues caused an increased risk to decedent.
The evidence presented by respondents only underscore that there are disputed issues of fact. Appellants presented contrary evidence that the actions of Ciccarelli in stopping the support vehicle in the racing lane on a curved downhill section of the course was in violation of custom and USA Cycling Rules and resulted in increased risk to the participants of the race. According to Howard, USA Cycling Rules dictate that support should not have been provided in such a place and, even if it was, it was imperative that the support vehicle pulled completely off of the road. Alternatively, if there was not a safe place to stop, Howard opined that it was proper to proceed to a location where the support vehicle could pull completely off of the road before stopping. In response, respondent contends that there were legitimate reasons why Ciccarelli stopped in the manner that he did: he wanted to stop close to the rider that needed aid, there was no available turnout or shoulder at that location and parking on dry grass on the side of the road could have started a fire.
Additional factual issues exist with regard to whether Velo Promo properly informed Ciccarelli regarding the details of the race, including the design of the course and interval times of the different heats. Ciccarelli declares that he made a decision to stop his support vehicle in the racing lane to render immediate aid to the cyclist rather than continue to look for a turnout that might not exist for miles. His testimony creates a question of fact whether he was improperly informed of the course and, in turn, whether his lack of knowledge of the location of appropriate areas to stop the support vehicle and the location of blind curves or descents increased the risk to the participants of the race. Likewise, questions of fact regarding whether Ciccarelli was informed as to the interval times may have increased the risk to the riders. It was Ciccarelli's understanding that the interval times between racing heats was five minutes, but he admits that he may have been mistaken and that the interval times was only three minutes. The interval times were actually only two minutes, and Ciccarelli's lack of knowledge of the times is probative of whether he increased the risk to the riders as he was unaware of when the next heat of riders was approaching.
Ciccarelli testified in his declaration that he knew the USA Cycling Rules regarding operating a support vehicle. He declares that it was standard operating procedure for support vehicles to pull as close as reasonably feasible to the cyclist needing assistance. In his experience, it would be a violation of safety protocol and very unusual to have the support vehicle meet the rider in a location other than where the rider is stopped because it would run contrary to the needs of the rider who wants immediate assistance. He also stated it was very common that at least part of the support vehicle would remain in the racing lane while providing assistance. His recollection was that the relevant USA Cycling Rule states to pull as far to the right when pulling over and was unaware of any USA Cycling Rule regarding not providing supplies on dangerous bends or descents.
Appellants, supported by evidence from their expert, argue that the USA Cycling Rules require that the support vehicle pull completely off the road, and if it is not feasible to do so, the driver must continue to a location where it is possible to do so. Howard states in his declaration that the failure to follow USA Cycling Rules and the rules of the road "resulted in a support van parked squarely in the designated cycling lane on a descent around a blind curve with less than 200 feet of visibility . . . creat[ing] an extremely dangerous and unnecessary hazard by obstructing the safe passage of the Category IV cyclists."
Respondents moved for summary judgment based on the defenses of waiver and primary assumption of risk. Appellants presented triable issues of material fact whether the risk was one that was inherent to the sporting activity and whether respondents increased that inherent risk. Appellants have shown that factual disputes exist whether respondents committed gross negligence that is not foreclosed by the assumption of risk defense. Here, appellants presented evidence that could support a determination that respondents failed to use due care not to increase the risks to decedent in its supervision and operation of the support vehicle. The stopped vehicle created a dangerous obstacle that caused all of the riders in decedent's heat to take evasive actions while racing at high speed to avoid. Triable issues of material fact exist with respect to the applicability of the release and the preclusion of liability by the doctrine of primary assumption of risk. The trial court's weight of the evidence was improper and the entry of summary judgment was error.
The judgment is reversed. The trial court is directed to withdraw its order granting summary judgment, and to enter an order denying defendants' motion for summary judgment. Appellants are to recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
LEVY, Acting P.J. and POOCHIGIAN, J., concurs.
