Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. GIC864730, Charles R. Hayes, Judge.
O'ROURKE, J.
Plaintiffs and appellants Roberto Garcia, Ronaldo Aleman and Gilberto Vega appeal from a summary judgment in favor of defendants SCORE International, Inc. (SCORE) and Steven Benitez (collectively defendants) on plaintiffs' action for premises liability and general negligence. By their action, plaintiffs sought damages for personal injuries they sustained when Benitez lost control of an all terrain vehicle (ATV or "quad") during an off-road race organized by SCORE at which they were spectators. On defendants' motions, the court granted summary judgment on grounds the primary assumption of the risk doctrine applied to relieve defendants of any duty and barred plaintiffs' causes of action. On appeal, plaintiffs contend primary assumption of the risk does not apply because as spectators, they were not injured by a risk inherent in the sport of off-road racing. They further contend the trial court improperly assigned them the burden of proof on summary judgment. Finally, they argue that to the extent secondary assumption of the risk applies, it would not totally bar their recovery but raise issues of comparative fault, which are not amenable to summary judgment. We conclude as to SCORE, summary judgment is not warranted based on the doctrine of primary assumption of the risk. As to Benitez, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Since 1973, SCORE has been producing and sanctioning a yearly desert racing series that is held in the United States and Mexico. One of SCORE's desert races is the Tecate San Felipe 250, which is held in San Felipe, Mexico. SCORE is invited by the City of San Felipe to conduct the race.
On February 26, 2005, the 19th annual Tecate San Felipe 250 (the San Felipe 250 or the race) took place. The race course was an approximately 240-mile loop through public roadways and natural desert terrain, starting and finishing on the outskirts of San Felipe. Registrants include professional and "sportsman" class racing motorcycles, ATVs, and trucks. That day, Roberto Garcia, Ronaldo Aleman and three other companions traveled to San Felipe to watch the race. They arrived early that morning, and parked on a dirt road approximately fifty feet from the edge of the marked course, at the inside of a curved location called "El Salto" where they could watch the race vehicles jump. Garcia and Aleman positioned themselves about 15 feet from the race course. Aleman estimated four to five hundred people in the crowd that day.
Garcia, who had never been to such a race before or seen one on television, knew beforehand they were going to be very close to the racing vehicles while watching and that the vehicles would be passing by fast. Aleman had been to off-road races before, though the one he had attended was a motorcycle race on a closed dirt track. He knew that the curves of a race course were the most likely place for a crash, and he agreed that when riding in dirt, the terrain could cause a rider to suddenly fall. Neither Garcia nor Aleman believed there was a risk of being hit by a quad while watching that distance away from the marked course, which was about 15 feet wide, nor had anyone told them about any such risk.
Gilberto Vega also went to the race with three other companions. He knew he wanted to watch the race from a location near an area known as "Zoo Road," because his friends had told him it a good spot to see the cars and there were small one-to-two-foot bumps, what he called "whoops," there. Vega had previously attended about ten off-road races in Mexico, and specifically had attended the San Felipe 250 four times before. He had also ridden a quad and a street motorcycle, and knew friends who had lost control on quads. Vega had seen an accident at another race, the Ensenada 500, where a quad missed a curve and hit two people, and he had also watched televised and recorded versions of off-road racing where he saw accidents in which quads or motorcycles hit people. At about 6:20 a.m., Vega positioned himself approximately five feet from the course in the whoops area to watch the racers pass. He avoided a spot directly on Zoo Road, which was crowded and Vega felt was very dangerous; he thought he had positioned himself in a safer location because the vehicles would have to slow down due to the bumpy terrain. Having ridden a quad, Vega understood that terrain, bumps and rocks could make you lose control, and while watching the race, he understood the quads and motorcycles could hit something and lose control. He knew before the race that in motor sports, sometimes vehicles go out of control.
Benitez was one of the drivers in the race that day, driving a four-wheeled motorcycle. At the time, his drivers' license was suspended as a result of a "wet reckless DUI" that had occurred in August 2003. While racing at a point around Zoo Road, Benitez lost control and left the course, colliding with Aleman, Garcia and Vega and causing them injuries. Benitez was not sleepy or drowsy that day, but based on his review of the video of the incident he guessed he hit his head on the handlebars and may have lost consciousness just before the collision. He admitted his vehicle was having some problems with one of its ball joints but it was not connected to the steering, it caused a rougher ride.
Garcia and Aleman filed a personal injury complaint against Benitez, which through later amendments became the operative first amended complaint including Vega as a plaintiff and alleging causes of action for premises liability against SCORE, and negligence against both SCORE and Benitez. In their premises liability cause of action, plaintiffs alleged SCORE negligently possessed, developed, promoted, marketed, maintained, managed and operated the course to include the area known as Zoo Road. They alleged the race was the first Garcia and Aleman had attended, and the dangers of standing approximately 15 feet from the designated course were not obvious to them, but Vega, who was an experienced spectator, believed he was in a safe location because the quads do not generally travel very fast in such a place due to the bumps or "washboard" effect of the road. Plaintiffs alleged many spectators congregate in the area known as Zoo Road, which allows them to see the race, and that SCORE and Benitez were aware spectators would be in the area where they were standing at the time they were struck. They alleged, "It is believed temporary fencing, traffic signs, barricades were [sic] placed by Defendant SCORE at various locations along the course including the Zoo Road area in anticipation of spectators."
In their negligence cause of action against SCORE, plaintiffs alleged SCORE did not guard against or warn spectators of the dangerous condition of the course or to anticipate racers could leave the course at any time striking spectators standing 15 feet off the designated course; that novice spectators were put in harm's way as a result of inadequate warnings, barricades and fences; and while drivers were warned to slow down where spectators were known to congregate, spectators were not warned about the "unobvious dangers posed by racers leaving the course." Plaintiffs further alleged SCORE failed to ensure race participants read their rule book before racing, and failed to inspect the property to ascertain the dangerous condition of the course, having "altered the natural landscape" by placing signs, fencing, and barricades at locations to direct the flow of traffic. As for Benitez, plaintiffs alleged he failed to take action to avoid colliding with spectators, did not sufficiently acquaint himself with the quad before the race, and failed to read the safety provisions of the rule book provided by SCORE.
SCORE moved for summary judgment or alternatively summary adjudication of issues on grounds it did not own, operate, possess, or control the race course or the premises, and thus owed no duty to plaintiffs, who were not race participants. It further argued plaintiffs' action was barred by primary assumption of the risk; that the doctrine applied to off-road racing and precluded claims by injured spectators like plaintiffs, who fully appreciated and understood the risk of injury. Benitez also moved for summary judgment or alternatively summary adjudication of issues on grounds plaintiffs' negligence cause of action was barred by primary assumption of the risk and thus he owed no duty to plaintiffs, and there was no evidence he acted intentionally or recklessly.
As to SCORE, plaintiffs opposed summary judgment by arguing SCORE (1) significantly increased the risk of drivers in the race colliding with spectators by failing to design or mark the course to designate areas where spectators could safely watch the race and (2) failed to require a competitors' license setting minimum training and experience for race participants. They argued SCORE had not shown the hazards of off-road desert racing were "common knowledge" to spectators or that it placed warning signs advising spectators of dangers. As to Benitez, plaintiffs challenged his credibility, urging the trial court to disregard his claim that he simply lost control of his vehicle. They asserted Benitez acted recklessly or intentionally by leaving the designated course to pass another vehicle, and further increased the risk of running into spectators by failing to sufficiently familiarize himself with the ATV he was going to run prior to the race.
Plaintiffs submitted their own declarations and declarations from experts William Zito and Luka Serdar. Serdar, a "vehicle and mechanical systems" expert, averred that SCORE had a duty to race spectators to designate a safe location or locations from which to watch the race as is done for racing events, including off-road desert races, in the United States, and that its failure to do so significantly increased the risk of harm to spectators. He opined further that SCORE should require a competitors' license from participants, requiring the participant to attend a sanctioned racing school and pass a minimum requirement for safe driving in racing conditions. He opined SCORE significantly increased the harm to spectators and participants by not requiring proof the drivers had at least minimal experience and training in such racing conditions. Zito, an accident reconstruction expert who had viewed a video of the collision, opined that Benitez did not lose control of his quad, but rather "tried to pass on the left of the other ATV's [sic] by leaving the designated course intentionally thus increasing significantly the risk of spectators being injured." Zito opined alternatively that if Benitez lost control, then his lack of familiarity with the vehicle and its responsiveness in the terrain significantly increased the risk of him losing control enough to leave the designated course. In reply, defendants lodged numerous objections to plaintiffs' evidence.
The trial court granted summary judgment in defendants' favor. In part, the court found it undisputed that SCORE did not solicit spectators and did not derive any benefit from their attendance; SCORE was invited to conduct the race by the City of San Felipe, Mexico and the City of San Felipe assumed sole responsibility in all security-related matters; and the authority to control access points lay solely with the Mexican government and private landowners. It ruled SCORE owed no duty to designate a safe area for spectators, reasoning Serdar's testimony about duties of race producers and practices in the United States did not establish evidence of a corresponding duty within the Republic of Mexico, and the only evidence before it established that the City of San Felipe and private landowners adjacent to the race assumed sole responsibility for safety and security. As to Benitez, the court found no evidence contradicting Benitez's testimony that he lost control of his quad, or showing the quad's ball joint trouble increased the risk of harm to plaintiffs. The court rejected Zito's opinions as without reasoned explanation or factual basis, and found the balance of Zito's opinions "subsumed by the doctrine of primary assumption of the risk." After setting forth these and other undisputed facts, the court ruled, "Failing to produce contrary evidence raising a triable issue of material fact, plaintiffs have failed to sustain their burden of proof" and thus "there is no triable issue of material fact . . . as a matter of law." Plaintiffs filed this appeal.
Plaintiffs' notice of appeal, filed December 24, 2007, purports to appeal from a "judgment" entered after the court's November 7, 2007 order granting summary judgment. The court, however, had not yet entered judgment at that time, and "[a]n order granting summary judgment is not an appealable order; the appeal is from the judgment." (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 288; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2006) ¶ 2:69.1, p. 2-41 (rev. #1 2006).) Judgment was eventually entered on January 29, 2008, and we exercise our discretion to deem the premature appeal as having been filed after entry of judgment. (Mukthar, at p. 288; Ung v. Koehler (2005) 135 Cal.App.4th 186, 192, fn. 2.)
DISCUSSION
I. Standard of Review
"A defendant moving for summary judgment based upon an affirmative defense, as here, bears an overall burden of persuasion that there is a complete defense to the plaintiff's action, that is, he must persuade the court there is no material fact for a reasonable trier of fact to find as to that defense." (Rancho Viejo LLC v. Tres Amigos Viejos LLC (2002) 100 Cal.App.4th 550, 557-558 (Rancho Viejo), citing Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 850, fn. 11 (Aguilar).) "In meeting its overall burden of persuasion, the defendant has the initial burden of production entailing him to 'present[ ] . . . "evidence" ' [citation] supporting a prima facie showing of the nonexistence of any triable issue of material fact as to the defense. [Citation.] Once the defendant has met that initial burden of production, the burden shifts to the plaintiff to present evidence showing the existence of a triable issue of one or more material facts as to that defense." (Rancho Viejo, at p. 558.) " 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof' at trial." (Ibid.)
On appeal, the reviewing court exercises its independent judgment in determining whether there are no triable issues of material fact and the moving party thus is entitled to judgment as a matter of law. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334-335.) We view the evidence in the light most favorable to the plaintiffs, construing the defendant's evidence strictly and plaintiffs' evidence liberally, and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff. (Shin v. Ahn (2007) 42 Cal.4th 482, 499; Rancho Viejo, supra,100 Cal.App.4th at p. 558.)
While defendants asserted numerous objections to the evidence, there is no indication in the record of the trial court's rulings on the majority of these objections (though the court stated it had addressed them). In the final judgment, the court expressly rejected plaintiffs' expert's opinion testimony, rulings that plaintiffs do not meaningfully challenge on appeal. We thus disregard the evidence that was the subject of the trial court's express rulings. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139-140.) Expert opinion on the legal question of SCORE's duty was inadmissible in any event. (See Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1017 (Kahn) [noting that expert opinion is, however, admissible "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"].) To the extent the record is absent an express ruling on defendants' objections, the evidence to which defendants objected is considered part of the record on appeal and defendants' evidentiary objections are deemed forfeited and not preserved for appeal. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1 (Sharon P.), disapproved on another point in Aguilar, supra, 25 Cal.4th at p. 853, fn. 19.)
II. Primary and Secondary Assumption of the Risk
To establish a cause of action for negligence, plaintiffs must prove the defendants owed them a duty of care. (Lackner v. North (2006) 135 Cal.App.4th 1188, 1197.) "The general rule of duty is that each person has a duty to use due care to avoid injuring others by their careless conduct [citations] and the duty owed by a property owner is to use due care to eliminate dangerous conditions on his or her property. [Citation.] Any exception to the general rule must be based on a clear public policy or statute. [Citations.] The doctrine of primary assumption of the risk is one such exception." (Ibid; see also Huff v. Wilkins (2006) 138 Cal.App.4th 732, 738.)
In a sports setting, the object of the primary assumption of the risk doctrine is to "avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity." (Kahn, supra, 31 Cal.4th at p. 1011.) In Kahn, this state's high court explained that "[a]lthough persons generally owe a duty of due care not to cause an unreasonable risk of harm to others [citation], 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. 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." (Id. at p. 1003.)
The court had earlier set out these principles in Knight v. Jewett (1992) 3 Cal.4th 296, 315-320 (Knight), where it addressed the assumption of the risk doctrine as it applies not only to coparticipants, but also to owners and operators of sports facilities, manufacturers of sports equipment, and coaches and instructors. (Kahn, supra, 31 Cal.4th at p. 1005.) Kahn summarizes: "[T]he term 'assumption of risk' had been used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk), and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant's breach of duty (secondary assumption of risk). [Citation.] In the latter class of cases . . . the issue could be resolved by applying the doctrine of comparative fault, and the plaintiff's decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff's knowing and voluntary acceptance of the risk functions as a form of contributory negligence. [Citation.] [¶] As for the first class of cases . . . the plaintiff's claim should be barred entirely because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim." (Id. at p. 1003.)
In the context of active sports, the court "warned that 'the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.' [Citations.] . . . [T]he question of 'the existence and scope' of the defendant's duty is one of law to be decided by the court, not by a jury, and therefore it generally is 'amenable to resolution by summary judgment.' " (Kahn, supra, 31 Cal.4th at p. 1004.)
"Looking first at the nature of the sport, we observed that '[i]n the sports setting . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.' [Citation.] We explained that, as a matter of policy, it would not be appropriate to recognize a duty of care when to do so would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events. Accordingly, defendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport. [Citation.]
"But the question of duty depends not only on the nature of the sport, but also on the 'role of the defendant whose conduct is at issue in a given case.' [Citation.] Duties with respect to the same risk may vary according to the role played by particular defendants involved in the sport. In the sport of baseball, for example, although the batter would not have a duty to avoid carelessly throwing the bat after getting a hit -vigorous deployment of a bat in the course of a game being an integral part of the sport - a stadium owner, because of his or her different relationship to the sport, may have a duty to take reasonable measures to protect spectators from carelessly thrown bats. For the stadium owner, reasonable steps may minimize the risk without altering the nature of the sport." (Kahn, supra, 31 Cal.4th at p. 1004.)
In another factual context, this court has reversed summary judgment on grounds the organizer of a marathon race owes a duty to participants to organize and conduct a reasonably safe event by providing sufficient water and electrolyte replacement drinks, which " 'minimize[d] the risks without altering the nature of the sport.' " (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 175, 179.) Other courts have likewise reversed summary judgments on grounds owners and operators of sports facilities, as well as providers of sports-related services and materials, owe a duty of care to patrons not to design or operate sports facilities, or provide services, in a manner that increases the risk of harm to them beyond that inherent in the sport. (Giordino v. Brown (2002) 98 Cal.App.4th 820, 834 [provider of horses to children's camp had a duty to at least not knowingly or without due care provide horses inappropriate for beginning riders]; Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317 [reversing grant of summary judgment in favor of ski resort owner; "when a ski area puts signs in a ski run . . . it has a duty to mark the signs so they are plainly visible from all angles to skiers who are skiing on the run"]; Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193 [motocross operator owed duty to bicycle racer not to design jumps in such a way to create an extreme risk of injury, such dangerously designed jumps are not inherently required in the sport].)
SCORE acknowledges these principles extend not just to sports participants, but also to spectators. (Nemarnik v. Los Angeles Kings Hockey Club (2002) 103 Cal.App.4th 631, 638 [upholding summary judgment for defendant hockey club on spectator's claim that the crowding of fans blocking her view caused her to be struck by a flying puck; court held club owed no legal duty because "obstructions of view caused by unpredictable movements of other fans are an inherent and unavoidable part of attending a sporting event"]; Lowe v. California League of Professional Baseball (1997) 56 Cal.App.4th 112 (Lowe) [team mascot's antics in stadium stands that distracted plaintiff not integral to sport]; Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176 [no duty to protect baseball fan who voluntarily elected to sit in unprotected seat from being struck with foul ball]; Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, 588 ["Nor does the inherent danger which goes along with participating in or watching other sports mean the commercial operators of facilities offering these activities owe no duty of care toward . . . spectators"].) Thus, while a defendant has no duty to eliminate or protect spectators from risks inherent to the sport itself, it does have a duty not to increase those inherent risks. (See Lowe, at p. 123.) "[T]he key inquiry . . . is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game." (Ibid.)
III. Contentions
Plaintiffs contend (1) as spectators, they were not injured by a risk inherent in the sport of off-road racing; (2) the trial court erred by believing Benitez's testimony that he simply lost control of his quad in the face of his conflicting stories as to what caused him to divert from the course, and in so doing improperly assigned plaintiffs the burden of proof on causation contrary to the nature of primary assumption of the risk as an affirmative defense; and (3) secondary assumption of the risk may apply, but is not amenable to summary judgment because it raises issues of comparative negligence for the trier of fact.
IV. Threshold Burden
When a plaintiff claims a defendant's conduct increased the risks beyond those inherent in a sport for purposes of avoiding primary assumption of the risks, a defendant will meet its threshold summary judgment burden by disproving the plaintiff's theory or establishing lack of causation so as to shift the burden to plaintiffs. (Huff v. Wilkins, supra, 138 Cal.App.4th at p. 740; Lowe, supra, 56 Cal.App.4th at pp. 123-124.) If defendants do not meet this burden, we need not assess plaintiffs' opposing evidence. (Id. at p. 124.)
In moving for summary judgment, SCORE argued that drivers losing control of their quad is a known risk of off-road racing, and thus it did not have a duty to reduce the risk of injuries inherent in the nature of the sport, even where there were means to ameliorate the dangers. In addition to plaintiffs' depositions in which they admitted familiarity with the dangers of racing vehicles on dirt tracks, SCORE submitted the declaration of Paul Fish, its Vice President, who averred the City of San Felipe "assumes sole responsibility in all security-related matters" and that "security was not under the direction or control of SCORE at any time." Fish stated that SCORE "does not now, or has it ever owned, possessed or controlled the land upon which the Tecate San Felipe race is conducted"; nor did it have "authority to control access points to the race course, including the area known as Zoo Road. Such authority lies solely with the Mexican government and private landowners." Finally, Fish averred that SCORE "does not solicit spectators to attend races and derives no financial benefit from their attendance."
The pertinent question is whether defendants' evidence, strictly construed, establishes that SCORE owes no duty to use reasonable care with respect to race spectators, a question this court analyzes as a matter of law. (Knight, supra, 3 Cal.4th at pp. 314-315; Giardino v. Brown, supra, 98 Cal.App.4th at p. 830.) In general, "[s]ome of the considerations that courts have employed in various contexts to determine the existence and scope of duty are: 'the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.' " (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472-473; see also McGarry v. Sax (2008) 158 Cal.App.4th 983, 994.) As stated, in the context of an active sport, we look to the nature of the sport and the parties' roles in it; "the scope of the legal duty owed by a defendant frequently will depend on the defendant's role in, or relationship to, the sport." (Knight, supra, 3 Cal.4th at pp. 313, 317; see Kahn, 31 Cal.4th at p. 1004; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 392.) We observed in Saffro v. Elite Racing, Inc. that courts analyzing the duty of owners of sports facilities or resorts "had defined 'the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to 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.' " (Saffro v. Elite Racing, Inc., supra, 98 Cal.App.4th at p. 178, quoting Knight, supra, 3 Cal.4th at p. 317.)
Turning to the nature of the sport, it is undisputed here that the race took place in and around the City of San Felipe, Mexico, on a course covering an approximately 240-mile loop through public roadways and natural desert terrain. Photographs in the record - to which defendants' objected but on which there is no trial court ruling indicating admission or exclusion - place the accident at issue in such a natural, unimproved desert area without delineated or paved roads. While spectators are known to gather (the evidence is undisputed there were hundreds of spectators at the location where plaintiffs viewed the race), SCORE does not solicit them and they gain access to the course at the election of private landowners and the Mexican government, which assumes sole responsibility for security.
We addressed the primary assumption of the risk doctrine as it relates to the sport of "off-roading" in Distefano v. Forester (2001) 85 Cal.App.4th 1249 (Distefano) (and more recently in Huff v. Wilkins, supra, 138 Cal.App.4th 732). In Distefano, the plaintiff and defendant were coparticipants in the sport, respectively riding a motorcycle and a dune buggy up a blind hill. (85 Cal.App.4th at pp. 1253, 1255-1256.) When they approached the hill's crest, they collided head on. (Id. at p. 1256.) We accepted the trial court's characterization of the sport of "off-roading," i.e., " 'driving activity that would not be countenanced on streets and highways, such as[] unsafe speeds, stirring up dust, [and] becoming airborne on hills and cresting dunes,' and '[i]t is an activity which for all intents and purposes has no rules.' " (Id. at p. 1262.) We observed the accident at issue took place in an "unincorporated area that is used specifically for off-road recreation, and consists of natural terrain with blind hills, inherently uneven areas, and vegetation. There are no streets with established boundaries or markings, instead, there are dirt trails that constantly change as a result of the vehicular activity and the forces of nature." (Id. at p. 1263.) The parties did not dispute that the recreational activity was inherently dangerous, and we concluded "the sport of off-roading involves inherent risks that the participants . . . may be involved in inadvertent motor vehicle collisions and may suffer serious injury or death." (Id. at p. 1264.) In Distefano, we affirmed summary judgment in the defendant's favor, concluding his failure to use a "spotter" to look out for other drivers, or equip his buggy with a "whipper" to warn others of his approach, was not so reckless as to be totally outside the range of the ordinary activity involved in off-roading. (Id. at p. 1275.)
The sport activity involved in this case differs from Distefano in several respects. This is an organized, competitive off-road race, not merely "off-roading" in which a participant can "navigate off the main trails and maneuver any way they chose" and there are "no streets with established boundaries or markings," and participants can "go as fast as they want . . . [because] typical rules of the road do not apply." (Distefano, supra, 85 Cal.App.4th at p. 1263.) Because it is an organized race, SCORE, the event "producer," assisted in designating a set course, with start/finish lines, fluorescent directional arrows including "down arrows" marking high traffic intersections, survey ribbon marking the course, and mileage markers. Salvatore Fish, a SCORE representative, testified these were the same kinds of markers used in the United States; that there was no difference in markers used in Mexico and the U.S. Plaintiffs evidence shows SCORE also has rules governing its races that are enforced by a registration crew, technical crew, checkpoint location captain and "CRV board," who are all paid and trained by SCORE. The rules, for example, prohibit racers from deviating more than 50 feet from the centerline of the course to pass.
Defendants objected to plaintiffs' inclusion of SCORE's "2003-2006 Off-Road Racing Rules and Regulations" as without foundation that they were the rules applicable to the 2005 race, but as stated, there is no record of the trial court's ruling on their objection and we therefore consider the objections forfeited.
SCORE coordinates with local officials of the particular venue, works with representatives from the government on where the course would go, and receives permission from the different agencies to conduct its race promotion. Plaintiffs' evidence shows it was nevertheless SCORE's sole responsibility to mark the course, and it was in charge of how the race was conducted on the course while it was in progress. This evidence contradicts Paul Fish's assertion that "SCORE does not now, or has it ever . . . controlled the land upon which the Tecate San Felipe race is conducted."
Even though there are differences between "off-roading" as discussed in Distefano and the off-road racing involved here, there is still no doubt that the sport of off-road racing, where vehicles are traveling across rough desert terrain at high speeds, poses significant inherent risks. We recognized in Distefano and more recently that " '[i]n various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one's abilities are actions held not to be totally outside the range of ordinary activities involved in those sports.' " (Huff v. Wilkins, supra, 138 Cal.App.4th at p. 739.)
Hence, we agree with SCORE's assertion that it is common knowledge (and indeed the evidence shows plaintiffs in this case knew) that off-road race vehicles, including an ATV or quad as involved in this case, can travel too fast and careen out of control, running off the course. Aggressive driving, as well as the possibility of mechanical problems or breakage, are "inevitable or unavoidable" features of the sport. (Distefano, supra, 85 Cal.App.4th at p. 1275; Lowe, supra, 56 Cal.App.4th at p. 123; Nemarnik v. Los Angeles Kings Hockey Club, supra, 103 Cal.App.4th at p. 641; Morton v. Ca. Sports Car Club (1958) 163 Cal.App.2d 685, 688 ["It is a well known fact that most of the accidents at sports car races occur on the turns because the additional stresses and strains on the car caused by the centrifugal force being exerted against it increase the likelihood that the car will spin out of control or lose one of its parts. It is therefore obvious that one of the most dangerous places from which a spectator may view a race is on a turn"].) But merely demonstrating there are inherent risks in the sport of off-road racing does not entitle defendants to summary judgment. (Huff v. Wilkins, supra, 138 Cal.App.4th at p. 743.)
Because it is an organized and promoted race event, and not merely off-roading in unmarked open space, we assess the nature of the risks and define them as they relate to spectators. Doing so, we see there are other, non-inherent, risks that may have contributed to the cause of plaintiffs' injuries. "A risk is inherent in a sport if its elimination (1) would chill vigorous participation in the sport; and (2) would alter the fundamental nature of the activity." (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 713, disagreed with on other grounds in Huff v. Wilkins, supra, 138 Cal.App.4th at p. 745; see also Kahn, supra, 31 Cal.4th at p. 1011.) In this case, plaintiffs placed themselves between five and 15 feet from the course to watch the race. The presence of spectators at points close enough to the race track to be hit by an out-of-control race vehicle is not an inherent or necessary element of the sport. Yet, there is no dispute that SCORE has never placed course markings for spectators and did not do so in this case. For races taking place in the United States, SCORE does not need to do so; the spectators are not on the course, they are in areas designated for viewing by agreement between SCORE and the landowner or other entity possessing the land. Rather than absolving SCORE of responsibility, this latter fact suggests the foreseeability to SCORE of risks from uncontrolled access by spectators at these kinds of events.
Paul Fish testified in his deposition that in the United States, those spectator areas were designated "possibly [by] the Bureau of Land Management and in Laughlin[, Nevada], there's a designated area that Laughlin controls." He agreed these designations were "in an agreement between SCORE and the local entities as to where those areas are for spectators to observe the race."
Having independently assessed SCORE's and plaintiffs' evidence, we conclude SCORE did not meet its threshold summary judgment burden to establish the defense of primary assumption of the risk. In particular, we hold SCORE's above-described role as a race producer imposes upon it some minimal duty of care not to increase the inherent risks of the sport to spectators; that it owes a duty to organize and conduct a reasonably safe event with respect to race spectators, which requires it to " 'minimize the risks without altering the nature of the sport.' " (Saffro v. Elite Racing, Inc., supra, 98 Cal.App.4th 173, 178-179, quoting Knight, supra, 3 Cal.4th at p. 317; see also Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134.) SCORE's evidence that it lacked control over access by or the presence of spectators does not negate the duty on SCORE's part to minimize risks to those spectators. SCORE could have spoken to or negotiated with the landowners or the Mexican government to arrange for limited spectator access to the race course, marked spectator areas or warning signs advising spectators of the risk of oncoming vehicles. There is no adverse effect on the sport of off-road racing to impose on the entity responsible for marking the course and conducting the race the duty to take such minimal steps. This is not to suggest an off-road race promoter must take steps see that the entire course is marked or barricaded, particularly, as here, where it spans 240 miles. Just as a baseball stadium owner need not provide spectators protection in all areas of a stadium, SCORE could have taken steps with landowners to have them provide reasonably marked spectator lines or adequate warnings " 'where the greatest danger exists and where such an occurrence is reasonably to be expected' " (Knight, 3 Cal.4th at p. 317; see also Morgan v. Fuji Country USA, Inc., supra, 34 Cal.App.4th at p. 134), i.e., where it knows or reasonably expects observers will congregate during the race. By making no such efforts with regard to spectators, SCORE may have exposed plaintiffs to an increased risk of harm. The evidence, viewed most favorably to plaintiffs, does not establish the defense of primary assumption of the risk.
Defendants concede plaintiffs were not in any approved spectator zone, pointing out they were not invited by SCORE to the race. A key question in assessing the existence of a duty of care is the foreseeability of harm to the plaintiff. (Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 473.) We strictly construe defendant's evidence, and Paul Fish's declaration does not say that SCORE did not know, anticipate or foresee that large groups of spectators would congregate at various places along the race route. Plaintiffs' evidence shows SCORE foresaw the potential presence of spectators; its race rules state SCORE's intent in prescribing safety equipment for vehicles competing under SCORE rules was to "provide adequate protection to all entrants and spectators." SCORE witness Salvatore Fish admitted the race was a "tourist attraction."
Defendants' reliance on the 1958 case of Morton v. Ca. Sports Car Club, supra, 163 Cal.App.2d 685 does not change this conclusion. In Morton, the court barred recovery for the plaintiff who had chosen to view a sports car race from one of the turns of the course, about 150 feet from the track itself. (Id. at pp. 686-687.) There, the defendant provided spectator grandstands and there were areas on the track protected by hay bales, but the plaintiff chose not to view the race from those locations. (Morton, at pp. 687-688.) Morton is a pre-Knight opinion, in which the court applied the assumption of the risk doctrine, which was "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." (Morton, at p. 688.) The assumption of risk doctrine is now "reconceptualiz[ed]." (Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161.)Thus, as stated above, Knight's duty approach is an objective test that does not depend on the particular plaintiff's subjective knowledge or appreciation of potential risk. (Ibid.; Kahn, supra, 31 Cal.4th at p. 1016; Knight, supra, 3 Cal.4th at pp. 316-317; Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068; McGarry v. Sax, supra, 158 Cal.App.4th at p. 989.) The fact that in this case, plaintiffs willingly participated as spectators and fully understood the dangers of standing close to the race course, as defendants urge, is of no relevance in determining whether primary assumption of the risk should apply.
Relying on Avila v. Citrus Community College District, supra, 38 Cal.4th 148, Distefano, supra, 85 Cal.App.4th 1249, and other cases, defendants further argue they have no duty to minimize the risk of injury or make the sport safer, even if they have the means to do so. But the cases on which defendants rely involve duties by sports facility operators or participants to other participants involved in the sport. Spectators in close proximity to the sidelines of an off-road race are not an inherent part of the sport, and thus our holding imposing a duty on SCORE to arrange for safety measures with regard to their location does not require SCORE to change the nature or the sport or decrease risks inherent in the sport. Indeed, Paul Fish admitted in his deposition that placing spectators in designated locations does not change the nature of the race.
Because we conclude summary judgment was not appropriate on these grounds, we need not address SCORE's asserted failure to enforce its rules as to drivers' licenses. "If it is ultimately determined primary assumption of the risk does not apply here, the issue then becomes one of secondary assumption of the risk." (Sanchez v. Hillerich & Bradsby Co., supra, 104 Cal.App.4th at p. 715.) This doctrine arises when the defendant still owes a duty of care, but the plaintiff knowingly encounters the risks attendant on the defendant's breach of that duty. (Avila v. Citrus Community College District, supra, 38 Cal.4th at p. 161, fn. 6.) Whether secondary assumption of the risk would bar recovery is a question of fact for trial. (Knight, supra, 3 Cal.4th at pp. 314-315; Van Dyke v. S.K.I. Ltd., supra, 67 Cal.App.4th at p. 1318; Branco v. Kearny Moto Park, Inc., supra, 37 Cal.App.4th at p. 193.)
V. Summary Judgment as to Benitez was Properly Granted
As plaintiffs' recognize, a participant in an active sport has a "limited duty of care that is breached only if [the participant] intentionally injure coparticipants or 'engage[s] in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.' " (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1491, quoting Knight, supra, 3 Cal.4th at p. 320.) We apply these principles to decide the question of Benitez's duty to spectators.
Though it is difficult to glean their argument, plaintiffs appear to argue that Benitez conducted himself recklessly by racing with a suspended drivers' license and operating an "unfamiliar and defective quad." We disagree that the evidence demonstrates Benitez was "unfamiliar" with the quad or its defective condition; Benitez testified he had pre-run the quad the week before the race, and he merely observed the quad had some ball joint problems, which did not impact its steering. Plaintiffs also point to asserted inconsistencies in Benitez's recall of the accident, particularly his mother's testimony that Benitez told her he saw someone enter the course and couldn't avoid him, and thereafter lost control. Plaintiffs also maintain that Benitez could have been attempting to pass another vehicle, presumably relying on Zito's declaration. But even if that were the case, passing other vehicles is inherent in racing. The evidence does not persuade us that triable issues of material fact exist as to whether Benitez intentionally sought to run into the crowd of spectators, or acted so recklessly as to be totally outside the range of the fast and aggressive kind of driving that occurs in off-road races.
Nor is there any indication Benitez had been drinking alcohol or that his driving abilities that day were hampered, and thus the fact his license was suspended for a DUI two years earlier was not a causative factor in assessing his negligence (as opposed to SCORE, which was responsible for ensuring the participants had valid drivers' licenses). In short, plaintiffs have not demonstrated the impropriety of summary judgment as to Benitez.
DISPOSITION
The summary judgment as to SCORE is reversed. The summary judgment as to Benitez is affirmed. The parties shall bear their own costs on appeal.
WE CONCUR: BENKE, Acting P. J., McINTYRE, J.