California: When a Provider Increases the Inherent Risks of the Activity

By Doyice Cotten

Jim McNeil was a professional motocross rider and jumper; he was killed in an incident in which he was attempting to make a 75 foot jump over a motorhome (McNeil v., 2016). His motorcycle had a loss of power and his flight fell short of the landing ramp. He had performed similar jumps in about 250 shows. In an earlier litigation, this court declined to grant the defendant’s bid for summary judgment because there was an issue of fact as to whether McNeil had actually signed the waiver. The court noted at that time that, even if valid, the waiver would not protect against gross negligence (McNeil v., 2015).

Plaintiffs filed a wrongful death lawsuit claiming gross negligence and recklessness in failing to place safety airbags on the landing ramp and covering the gap between the ramp and the motorhome. In California, to recover for gross negligence, the plaintiff must allege the elements of ordinary negligence; additionally, within the claim, the plaintiff must charge that the defendant’s conduct was extreme. The conduct allegations must be specific and must include evidence substantiating the claims.  Defendant’s conduct must rise to the level of either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.”

Inherent Risks of Freestyle Motocross

The parties agreed that inherent risks of freestyle motocross include motorcycle malfunction, coming up short on the jump, and weather conditions. They also agreed that in broad terms, inherent risks include crashes, catastrophic injuries and death.

But Plaintiffs argue that the inherent risks to freestyle motocross also include any risks that cannot be eliminated without altering the fundamental nature of the sport. Plaintiffs argue that a negligently designed jump, for example, cannot be one of the inherent risks of freestyle motocross.

The court finds that Defendants’ assertion that injury and death are inherent risks of freestyle motocross is too broad an assertion for the purposes of defining the inherent risks specific to freestyle motocross. Injury and death, however remote the possibility, are risks inherent to any activity.

The court determined that two inherent risks specific to this type of freestyle motocross are the failure to clear the 75-foot jump and the failure to stick a landing. Enduring these risks may be due to rider error, motorcycle malfunction, or weather. Considering the fundamental nature of freestyle motocross and that falling short of the 75 foot jump is a risk that cannot be eliminated without altering the fundamental nature of the activity, the court found that primary assumption of the risk applied to freestyle motocross. The court concluded that when Jim McNeil raced up the takeoff ramp, he assumed the risk of failure to clear the jump – regardless of the cause of the failure. The question for the court was whether the defendants increased the inherent risk of his catastrophic injury and death by failing to provide airbags or by failing to close the gap between the motorhome and the landing ramp.

Whether Defendants Increased the Inherent Risks of the Sport.

Defendants had a limited duty of care to McNeil; that duty was breached only if they increased the risk beyond that which is inherent to the activity itself.  On a summary judgment motion asserting primary assumption of the risk, a defendant has the burden to show there is no triable issue of fact regarding whether it increased any inherent risks associated with the activity.

Plaintiffs argued that increasing the inherent risks of an activity and failing to minimize any associated risks are the same thing. Thus, by failing to minimize the risks, defendant, in effect increased the inherent risks.

Defendants countered arguing that the duty to not increase inherent risks and the duty to minimize risks are distinguishable. They claim there were no overt acts or changes to the design of FreestyleMX’s jump, because the lack of airbags and the presence of the motorhome were normal aspects of the jump sequence. Further, the cause of McNeil’s fall was his insufficient speed due to a motorcycle malfunction; in other words, the lack of an airbag did nothing to prevent McNeil from making the jump. Defendants argue that they did nothing to increase the risk that McNeil would actually fall short of the jump.

The court disagreed, citing the Knight court statement that the duty of an owner-operator depends not only on defining the risks inherent to the sport but also on “the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport.” It went on to say that in this case, there is not enough historical context to the sport of freestyle motocross and uncontroverted evidence to determine as a matter of law whether the design of the jump (with its motorhome and without airbags) was an inherent risk of the sport.

The court stated that a trier of fact must evaluate whether a defendant increased the risk to a participant over and above those inherent to the sport. If the answer is no, then there is no negligence on the part of the defendant. If yes, then the waiver, if valid, would provide protection for ordinary negligence, but not for gross.

Photo Credit: Thanks to Moosealope via Flickr.