Hass v. RhodyCo Productions ( 2018 )

Filed 8/13/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
EDEN GONZALEZ HASS et al.,
Plaintiffs and Appellants,
A142418
v.
RHODYCO PRODUCTIONS, (City & County of San Francisco
Super. Ct. No. CGC-12-520492)
Defendant and Appellant.
After crossing the finish line at the 2011 Kaiser Permanente San Francisco Half
Marathon, Peter Hass (Hass) tragically suffered a cardiac arrest, collapsed, and died.
Hass’s wife, Eden Hass, and his two minor children (collectively, the Hass Family)
consequently filed this wrongful death action, alleging that numerous race-affiliated
individuals and entities—including event organizer David Rhody, individually and dba
RhodyCo Productions (RhodyCo)—were negligent in the organization and management
of the race, particularly with respect to the provision of emergency medical services. 1
The trial court initially granted RhodyCo’s summary judgment motion in this matter,
concluding that the instant action was barred under theories of primary assumption of the
risk and express waiver. However, after the Hass Family filed a motion for new trial, the
trial court reversed itself. Specifically, the court found that primary assumption of the
risk was inapplicable on these facts and further determined that the Hass Family should
have been allowed to amend their complaint to plead gross negligence, conduct falling
1
RhodyCo is the appellant herein and the only remaining defendant, as a number of
settlements have occurred and all of the other named defendants have been dismissed
from the action.
1
outside of the scope of the written waiver and release. On appeal, RhodyCo argues that
the trial court’s initial grant of summary judgment was correct, even if the issue of gross
negligence is considered on its merits. The Hass Family, in contrast, generally
champions the court’s new trial order, but argues that the express release in this case was
invalid on additional grounds rejected by the trial court and that the court should have
concluded on the evidence before it that a triable issue of material fact exists as to
RhodyCo’s gross negligence. We agree with the trial court that summary judgment was
not warranted in this case based on primary assumption of the risk. However, we believe
the trial court erred in requiring amendment of the complaint to plead gross negligence
and determine, based on our independent review of the record before us, that a triable
issue of material fact exists on this issue. We therefore affirm in part and reverse in part,
with instructions to enter a denial of RhodyCo’s summary judgment motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
The annual Kaiser Permanente San Francisco Half Marathon & 5K Run in Golden
Gate Park (Half Marathon) consists of two different events—a 13.1 mile half marathon
and a 5 kilometer run. In 2011, the anticipated attendance for the two races was
estimated to include 10,000 participants and 600 volunteers. RhodyCo provided event
management and production services for the Half Marathon from 2006 through 2011. In
order to obtain the necessary temporary street closure permit for the event, RhodyCo was
required to submit an emergency medical services plan (EMS Plan) to the City and
County of San Francisco (City) for review and approval by the City’s Emergency
Medical Services Agency (Agency).
The approved EMS Plan for 2011 stated, as it had in previous years, that the
medical personnel at the Half Marathon would be provided by Palmer College of
Chiropractic-West (PCCW) and American Medical Response (AMR). More specifically,
it asserted that PCCW would “ ‘provide event trained Medical Personnel for the event,
(students are all CPR certified and have taken emergency response class). Med Teams
will be located at key areas (Start Line, Finish Lines, Postrace Medical Tent, and mobile
units on the course). The head clinician event day, Dr. Hal Rosenberg [phone number],
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will be onsite at the Postrace Medical Tent. AMR will provide an [emergency medical
technician (EMT)] who will be posted with PCCW Med Team in the postrace Medical
Tent at the Finish of the race—AMR is also providing an ALS ambulance to respond [to]
medical emergencies—the standby will be posted on Lincoln at the Great Hwy . . . . The
Standby and Medical Team will be equipped with cellphone active Nextel radios with
direct communication to the Event Coordinator and each other.’ ” Other portions of the
approved EMS Plan, however, indicated that one M.D., 6+ EMTs, and one automatic
external defibrillator (AED) would be located at the finish line.
Having signed a release (Release) in which he agreed, among other things, to
“accept the inherent dangers and risks” arising from his participation in the race and to
release RhodyCo from “any and all claims” based on injuries he might suffer “at or
enroute to and from this event,” Hass participated in the Half Marathon on February 6,
2011. Almost immediately after crossing the finish line at 10:05:34 a.m., Hass suffered a
sudden cardiac arrest and collapsed. Another runner, Dr. Charles Whitehill, crossed the
finish line 13 seconds after Hass and heard him fall. Dr. Whitehill—who had significant
experience in providing and overseeing resuscitation efforts for patients—began to
perform cardiopulmonary resuscitation (CPR) on Hass within 30-60 seconds of arriving
at Hass’s side. Dr. Whitehall was involved in CPR efforts for five to eight minutes, after
which CPR was continued by another bystander who identified himself as an off-duty
paramedic. Approximately 11 minutes after Hass collapsed a third bystander brought the
AED from the post-race tent, which was located somewhere between 100 and 200 yards
beyond the finish line. When the AED was applied, it showed that Hass had no
shockable heart rhythm. CPR efforts were then continued until paramedics from the
City’s Fire Department arrived at approximately 10:31 a.m. and took over treatment.
Unfortunately, Hass was pronounced dead shortly thereafter at 10:49 a.m. RhodyCo has
provided event management and production services for over 25 years, including at least
400 running, walking, and other events involving over 1.5 million participants. Hass’s
tragic death was the only fatality ever experienced at a RhodyCo-managed event.
3
On May 3, 2012, the Hass Family filed this wrongful death action (Complaint),
alleging, among other things, that RhodyCo had negligently organized and planned the
Half-Marathon; negligently “hired, retained, . . . supervised, [and] controlled” the
medical team; and negligently “managed, trained, supervised and controlled emergency
and medical resources.” In particular, the Hass Family highlighted the use of
chiropractors rather than medical doctors, the use of chiropractic students rather than
EMTs, the lack of ambulance personnel at the finish line, inadequate communication and
communication devices, and inadequate AEDs and ambulances. RhodyCo answered,
generally denying the Complaint allegations and asserting several affirmative defenses,
including primary assumption of the risk and express contractual assumption of the risk
and release of liability.
RhodyCo then filed a motion for summary judgment, arguing that the Hass
Family’s wrongful death action was completely barred based on the two aforementioned
affirmative defenses. Specifically, RhodyCo claimed that Hass had agreed to be bound
by the Release when he registered for the Half Marathon, which included a waiver of
liability and assumption of the risk agreement that was binding on his heirs. In addition,
RhodyCo asserted that sudden cardiac arrest is an inherent risk of long-distance running
and that it had done nothing to increase this risk. Under these circumstances, RhodyCo
opined, the Hass Family’s action was barred under the primary assumption of the risk
doctrine.
In opposition to the summary judgment motion, the Hass Family argued with
respect to the Release that it was void to the extent it purported to cover emergency
medical services, as such services implicate the public interest; that it was not a clear and
unambiguous waiver of future liability for a wrongful death claim; and that it was
ineffective to exempt RhodyCo from liability for gross negligence. With respect to the
doctrine of primary assumption of the risk, the Hass Family agreed that cardiac arrest is
an inherent risk of long-distance running, but argued that a sponsoring entity is
nevertheless obligated to take reasonable steps to minimize inherent risks to the extent it
is able to do so without altering the nature of the sport. They further maintained that
4
RhodyCo had increased the risk of death beyond that inherent in the sport by failing to
comply with the EMS Plan.
On the issue of negligence, the Hass Family presented evidence indicating that
medical emergencies (including cardiac arrests) are more likely to occur near the finish
line of a race because runners tend to push themselves to improve their times, causing an
adrenaline rush and an arrhythmia. Moreover, as the City, itself, has recognized:
“ ‘[C]losing off several major streets at the same time to accommodate a race often
causes . . . potential interference with emergency services.’ ” (San Francisco
Transportation Code, § 6.11, subd. (a).) The Hass Family argued that, although
RhodyCo’s EMS Plan for the Half Marathon properly identified the finish line as a “ ‘key
area’ ” and indicated numerous resources would be stationed there—including a medical
doctor, AED, and “6+” EMTs—the only medical personnel assigned to the finish line
were Dr. Rosenberg (a chiropractor) and the Event Coordinator (a chiropractic student),
neither of whom were actually at the finish line when Hass collapsed. They further
claimed that the AED was in the medical tent located approximately 200 yards away, in
the post-race expo area; that no event medical personnel arrived at the scene until ten
minutes after Hass collapsed; and that, when a bystander arrived with the AED at the 11-
minute mark, it was too late to help Hass. The Hass Family also found fault with the
communications equipment provided by RhodyCo for the Half Marathon. Although the
EMS Plan represented that “all event safety personnel” would have “cell phone active
radios,” the Hass Family averred that only six or seven radios were provided to the
medical team; that no radio was provided to the ambulance or to either chiropractic
doctor on site; and that there was no radio in the medical tent. Finally, the Hass Family
presented declarations from several experts indicating that the standard of care for an
event like the Half Marathon is to have a competent medical director who is a medical
doctor and to follow the medical plan. Moreover, according to one of the Hass Family’s
experts, because races like the Half Marathon can disrupt the local 911 system, the
standard of care additionally requires enough on-site ambulances (and/or backfilling of
5
ambulances) to provide for rapid medical care for runners who collapse due to sudden
cardiac arrest, particularly near the finish line. 2
As stated above, the trial court initially granted RhodyCo’s summary judgment
motion, concluding that the Hass Family’s wrongful death action was barred under
theories of primary assumption of the risk and express waiver. The Hass Family then
filed a motion for new trial, arguing that the trial court had erred in its legal analysis of
the primary assumption of the risk doctrine. In addition, they asserted that all of the trial
court’s conclusions with respect to the Release were erroneous. In particular, they argued
that they were not required to plead gross negligence in the Complaint and that, in any
event, it was an abuse of discretion to deny their request to amend the Complaint to cure
any such perceived defect. The Hass Family also provided new evidence that they
alleged supported finding a triable issue with respect to gross negligence—the deposition
testimony of Dr. Brown, the head of the Agency, stating that nothing in the EMS Plan
2
RhodyCo objected to these expert declarations on a number of grounds in the trial court,
but, given its resolution of the summary judgment and new trial motions before it, the
court never needed to rule on their admissibility. RhodyCo now argues that we should
not consider them on appeal for similar reasons. We are cognizant of the fact that “[i]t
will always be possible for a plaintiff who suffers a sports injury to obtain expert
testimony that the injury would not have occurred if the recreation provider had done
something differently.” (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th
30, 39.) Moreover, generally speaking, courts do not consider an expert’s testimony to
the extent it constitutes a conclusion of law. (Summers v. A.L. Gilbert Co. (1999) 69
Cal.App.4th 1155, 1180-1181.) However, we do not believe that the expert declarations
in the present case were limited to offering legal conclusions. Rather, they present useful
information regarding the standard of care for races such as the Half Marathon from
individuals who appear eminently qualified to provide it. (See Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990, 1003-1017 (Kahn) [“ ‘we perceive no reason to
preclude a trial court 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’ ”]; see also Evid. Code, § 805 [an
expert’s testimony may embrace an ultimate factual issue].) We therefore consider them
for that purpose. (Cf. Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072,
1086-1087 (Rosencrans) [relying on an expert declaration on the issue of extreme
departure from the ordinary standard of care when finding a triable issue with respect to
gross negligence].)
6
indicated that chiropractic students would be substituted for EMTs at the finish line and
that his discussions with RhodyCo regarding the use of chiropractic students was limited
to their use on the mobile teams. Dr. Brown also testified that he had never discussed
with RhodyCo the propriety of substituting a chiropractic doctor for a medical doctor as
race supervisor. RhodyCo opposed the motion for new trial, arguing that the trial court’s
initial decision was correct under the law; that Dr. Brown’s deposition testimony should
not be considered as the Hass Family had not acted with diligence in producing it; and
that, regardless, the statements from the deposition highlighted by the Hass Family were
undercut by other deposition testimony.
After hearing, the trial court granted the Hass Family’s new trial motion.
Specifically, the court agreed with the Hass Family that primary assumption of the risk
was inapplicable on these facts and further determined that the Hass Family should have
been allowed to amend the Complaint to plead gross negligence. Although it refused to
rule on the existence of a triable issue with respect to gross negligence pending the filing
of the amended Complaint, it did reject RhodyCo’s argument that the Hass Family had
not moved with diligence in taking the deposition of Dr. Brown.
RhodyCo’s notice of appeal and the Hass Family’s notice of cross-appeal now
bring the matter before this court.
II. DISCUSSION
A. Standard of Review
As described above, the procedural posture of this case is somewhat convoluted.
Although the trial court initially granted RhodyCo’s summary judgment motion, it
subsequently reversed itself on one ground (primary assumption of the risk) and then
deferred ruling on another ground it had previously rejected (gross negligence) pending
amendment of the Complaint, effectively granting a new trial on both issues. Such an
order is appealable. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 858
(Aguilar) [noting, in finding appealability under similar circumstances, that it “makes no
difference” that an order granting a new trial following an order granting summary
judgment “may operate like an order denying summary judgment, which is
7
nonappealable”].) Further, although orders granting a new trial are generally examined
for abuse of discretion, any determination underlying the new trial order is scrutinized
using “the test appropriate for that determination.” (Douglas v. Fidelity National Ins. Co.
(2014) 229 Cal.App.4th 392, 407; see also Aguilar, supra, 25 Cal.4th at pp. 859-860.)
Here, then, the trial court’s conclusions with respect to the appropriateness of
summary judgment are subject to our de novo review. (Aguilar, supra, 25 Cal.4th at
p. 860; In re Automobile Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150
(Automobile Antitrust Cases).) In this regard, we review the trial court’s ruling; not its
rationale. (Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 150.) “Thus, ‘[t]he
sole question properly before us on review of the summary judgment [order] is whether
the judge reached the right result . . . whatever path he [or she] might have taken to get
there.’ ” (Id. at pp. 150-151.)
Moreover, the underlying issues implicated by RhodyCo’s summary judgment
motion are also subject to our independent review. For instance, “ ‘[c]ontract principles
apply when interpreting a release, and “normally the meaning of contract language,
including a release, is a legal question.” [Citation.] “Where, as here, no conflicting parol
evidence is introduced concerning the interpretation of the document, ‘construction of the
instrument is a question of law, and the appellate court will independently construe the
writing.’ ” ’ ” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1483
(Cohen); see also Paralift, Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 754-755
(Paralift).) Similarly, it has long been recognized that application of the primary
assumption of the risk doctrine is a legal question, to be determined by the courts as a
matter of law. (See Kahn, supra, 31 Cal.4th at pp. 1003-1004; see also Honeycutt v.
Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 257 [“ ‘[T]he legal question of
duty, and specifically the question of whether a particular risk is an inherent part of a
sport, “is necessarily reached from the common knowledge of judges, and not the
opinions of experts” ’ ”].) In our resolution of this matter, then, we are writing on what is
essentially a clean slate, bearing in mind that we should resolve any evidentiary doubts in
the Hass Family’s favor, given that they are the party opposing summary judgment.
8
(Automobile Antitrust Cases, supra, 1 Cal.App.5th at p. 151 [“In undertaking our
analysis, we ‘ “accept as true the facts . . . in the evidence of the party opposing summary
judgment and the reasonable inferences that can be drawn from them.” ’ ”].)
B. Express Waiver
During the online registration process for the Half Marathon, Hass was presented
with the following warning regarding his need to execute the Release: “Please read any
waiver carefully. It includes a release of liability and waiver of legal rights and deprives
you of the ability to sue certain parties. Do not agree to this document unless you have
read and understood it in its entirety. By agreeing electronically, you acknowledge that
you have both read and understood all text presented to you as part of the registration
process. You also understand and agree that events carry certain inherent dangers and
risks which may not be readily foreseeable, including without limitation personal injury,
property damage, or death. Your ability to participate in the event(s) is/are subject to
your agreement to the waiver and by agreeing herein, you accept and agree to the terms
of the waiver and release agreement.” (Italics added.) The document referenced in this
warning—which could either be printed out or read in its entirety online—is entitled
“Waivers” and reads in pertinent part as follows: “I understand that by registering I have
accepted and agreed to the waiver and release agreement(s) presented to me during
registration and that these documents include a release of liability and waiver of legal
rights and deprive me of the right to sue certain parties. By agreeing electronically, I
have acknowledged that I have both read and understood any waiver and release
agreement(s) presented to me as part of the registration process and accept the inherent
dangers and risks which may or may not be readily foreseeable, including without
limitation personal injury, property damage or death that arise from participation in the
event. [¶] In consideration of your accepting this entry . . . , I, intending to be legally
bound, do hereby for myself, my heirs, executors, and/or administrators, waive and
release any and all claims for damages I may accrue against . . . RhodyCo . . . any and all
contractors, their employees, representatives, agents and heirs from any and all injuries
that may be suffered by me at or enroute to or from this event. I attest that I am
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physically fit and sufficiently trained for this strenuous competition. I will assume my
own medical and emergency expenses in the event of an accident or other incapacity or
injury resulting from or occurring in my participation. . . .” (Italics added.) 3
As stated above, RhodyCo argued in its summary judgment motion that the
Release signed by Hass (Release) acted as a complete bar to the instant action. The trial
court initially agreed, rejecting the Hass Family’s arguments that the wording of the
Release was insufficient to exempt RhodyCo from wrongful death claims and that the
Release was void on public policy grounds. In addition, because gross negligence was
not specifically alleged in the Complaint, the court refused to consider the Hass Family’s
third argument—that RhodyCo had engaged in gross negligence falling outside of the
scope of the Release. However, the trial court later granted a new trial on this issue,
stating it would allow the Hass Family to amend its Complaint to cure this defect. The
court declined to determine whether a triable issue as to RhodyCo’s alleged gross
negligence existed, pending the filing of the amendment. In this appeal and cross appeal,
the parties raise all three of these issues involving the impact of the executed Release as
potential grounds either supporting or undermining the trial court’s summary judgment
decision. We therefore address each contention in turn.
1. Waiver of Wrongful Death Claim
Our high court has explained that wrongful death claims “are not derivative claims
but are independent actions accruing to a decedent’s heirs.” (Ruiz v. Podolsky (2010) 50
Cal.4th 838, 841 (Ruiz); see also Madison v. Superior Court (1988) 203 Cal.App.3d 589,
596 (Madison) [“ ‘The longstanding rule is that a wrongful death action is a separate and
distinct right belonging to the heirs, and it does not arise until the death of the
decedent.’ ”].) “Because a wrongful death claim is not derivative of the decedent’s
3
The Release was immediately followed by another, extensive waiver and release
agreement entitled “Active Registration Agreement and Liability Waiver,” designed to
absolve The Active Network, Inc. (Active) from certain liabilities in connection with its
role as the registration portal for the event. We agree with the Hass Family that the
contents of this separate waiver and release agreement—directed solely to Active—has
no relevance to our construction of the RhodyCo Release.
10
claims, an agreement by the decedent to release or waive liability for [his or] her death
does not necessarily bar a subsequent wrongful death cause of action.” (Eriksson v.
Nunnink (2015) 233 Cal.App.4th 708, 725.) Rather, a distinction is made in these
circumstances “between the legal ineffectiveness of a decedent’s preinjury release of his
[or her] heirs’[] subsequent wrongful death action and the legal effectiveness of an
express release of negligence by a decedent which provides a defendant with ‘a complete
defense.’ ” (Madison, supra, 203 Cal.App.3d at p. 597.) In other words, although a
decedent cannot release or waive a subsequent wrongful death claim by the decedent’s
heirs, that decedent’s “express agreement to waive the defendant’s negligence and
assume all risks” acts as a complete defense to such a wrongful death action. (Saenz v.
Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 763-764 (Saenz); see also Ruiz,
supra, 50 Cal.4th at pp. 851-852 [“although an individual involved in a dangerous
activity cannot by signing a release extinguish his [or her] heirs’ wrongful death claim,
the heirs will be bound by the decedent’s agreement to waive a defendant’s negligence
and assume all risk”].) Under such circumstances, the releasor is essentially agreeing not
to expect the other party to act carefully, thus eliminating that person’s duty of care.
(Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 (Coates).)
As an example, in Coates, supra, 191 Cal.App.3d 1, the decedent, a dirtbike rider,
signed a release before using the defendant’s motorcycle park. (Id. at pp. 3-4.) After the
decedent was fatally injured, his heirs sued, arguing that the defendant had been negligent
in the design and maintenance of the trail on which the decedent was hurt. (Ibid.) The
appellate court agreed with the trial court that the decedent’s release barred the
subsequent wrongful death action. Specifically, the court noted that, in the first half of
the release, the decedent “expressly waived liability for injuries or death which might
result from respondents’ ordinary negligence in the future. In the second half, he
expressly assumed all risk of injury from dangers inherent in dirtbike riding on
respondents’ premises.” (Id. at p. 7; see also id. at p. 4 & fn. 2.) The court concluded
that this express assumption of the risk also bound the decedent’s heirs. (Id. at p. 8.) The
court additionally opined that whether or not the decedent had “sufficient knowledge of
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the particular risk which resulted in his death” was irrelevant under the circumstances of
the case because “knowledge of a particular risk is unnecessary when there is an express
agreement to assume all risk.” (Id. at pp. 8-9.)
Our own decision in Saenz, supra, 226 Cal.App.3d 758, is in accord. There, the
decedent fell out of a raft on a whitewater rafting trip hosted by Whitewater, a
commercial rafting company, and drowned. (Id. at pp. 759, 762.) Prior to this fatal
incident, the decedent had signed a release, stating: “ ‘I am aware that certain risks and
dangers may occur on any river trip with Whitewater . . . . These risks include, but are not
limited to, hazards of and injury to person and property while traveling in rafts on the
river, accident or illness in remote places without medical facilities, the forces of nature
. . . . [¶] . . . I hereby assume all of the above risks and, except in the case of gross
negligence, will hold Whitewater . . . harmless from any and all liability, actions, causes
of action, debts, claims, and demands of every kind and nature whatsoever which I now
have or which may arise out of or in connection with my trip or participation in any
activities with Whitewater . . . .’ The agreement further stated it operated as a release and
assumption of risk for his heirs.” (Id. at p. 763, fn. 7, italics added.) Noting that
“drafting a legally valid release is no easy task,” we opined that “ ‘[t]o be effective, a
release need not achieve perfection . . . . It suffices that a release be clear, unambiguous,
and explicit, and that it express an agreement not to hold the released party liable for
negligence.’ ” (Id. at p. 765.) Given that the plain language of the Saenz release
indicated that the decedent consented to assume the risks associated with whitewater
rafting and release Whitewater from any and all liability arising out of the trip, the fact
that the exculpatory sentence did not explicitly state that it covered Whitewater’s
negligence and did not specifically mention death or drowning was insufficient to
invalidate the otherwise clear release. (Id. at pp. 765-766; see also Cohen, supra, 159
Cal.App.4th at p. 1485 [“ ‘If a release of all liability is given, the release applies to any
negligence of the defendant.’ ” (Italics added.)].)
Indeed, generally speaking, “ ‘[w]hether a release bars recovery against a
negligent party “turns primarily on contractual interpretation, and it is the intent of the
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parties as expressed in the agreement that should control.” ’ ” (Sanchez v. Bally’s Total
Fitness Corp. (1998) 68 Cal.App.4th 62, 66-67.) Moreover, in this regard, “ ‘[o]ur
analysis is not based on the mechanical application of some formula. The presence or
absence of the words “negligence” or “bodily injury” is not dispositive. We look instead
to the intention of the parties as it appears in the release forms before the court.’ ” (Id. at
p. 67; see also Cohen, supra, 159 Cal.App.4th at p. 1488 [noting that release should be
understood as speaking to an ordinary person untrained in the law].) By signing the
Release in the instant case, we conclude that Hass intended both to assume all risks
associated with his participation in the race, up to and including the risk of death, and to
release RhodyCo (on behalf of himself and his heirs) from any and all liability with
respect to any injuries he might suffer as a result of his participation. This was sufficient
to block the Hass Family’s wrongful death claim for ordinary negligence.
The Hass Family, however, argues that the Release executed by Hass in this case
is ineffective as a defense to their wrongful death claim because the express assumption
of the risk language is limited solely to risks “inherent” in race participation—I “accept
the inherent dangers and risks . . . that arise from participation in the event”—which does
not include any potentially negligent conduct by RhodyCo that may have increased those
inherent risks. They further contend that the release language contained in the next
sentence of the Release is similarly ineffectual in the wrongful death context because it is
limited to “any and all claims for damages I [i.e., Hass] may accrue,” thus excluding
claims accrued by his heirs. We are not persuaded.
“With respect to the question of express waiver, the legal issue is not whether the
particular risk of injury appellant suffered is inherent in the recreational activity to which
the Release applies [citations], but simply the scope of the Release.” (Cohen, supra, 159
Cal.App.4th at p. 1484.) Here, reading the Release as a whole—as would an ordinary
person untrained in the law—we are convinced it expresses Hass’s intent to assume all
risks arising from his participation in the Half Marathon, including any risks related to
RhodyCo’s negligence. In particular, and as we remarked in Saenz (also a wrongful
death action), we believe that the juxtaposition of the assumption of risk language and the
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blanket release language conveys the message that Hass assumed all risks related to
participation in the Half Marathon while excusing RhodyCo from any liability arising
from the race. (See Paralift, supra, 23 Cal.App.4th at pp. 756-757 [considering broad
release language as well as assumption language in upholding release in wrongful death
action]; Saenz, supra, 226 Cal.App.3d at p. 765 [same]; Coates, supra, 191 Cal.App.3d at
p. 7, 9 & fn. 2 [release valid where decedent waived all liability for injury or death and
assumed risk of injury from dangers inherent in riding dirt bike on premises]; see also
National & Internat. Brotherhood of Street Racers, Inc. v. Superior Court (1989) 215
Cal.App.3d 934, 937-938, 940 (Street Racers) [in case claiming lack of competent
medical attention/rescue equipment, release is valid even though it included an
assumption of “ ‘all risk inherent in racing’ ” because it also released “in unqualified
terms . . . all claims arising from plaintiff’s participation in the race”].) 4
We similarly reject the Hass Family’s assertion that the assumption of risk
language used in the Release—I “accept the inherent dangers and risks . . . that arise from
participation in the event”—is ambiguous as “accept” in this context could reasonably
mean “understand” as well as “assume.” (See Cohen, supra, 159 Cal.App.4th at p. 1485
[an ambiguity in a release exists when a party can identify an alternative, semantically
reasonable, candidate of meaning; an ambiguity “ ‘should normally be construed against
the drafter’ ” of the release].) The complete sentence at issue reads: “By agreeing
electronically, I have acknowledged that I have both read and understand any waiver and
release agreement(s) presented to me as part of the registration process and accept the
inherent dangers and risks which may or may not be readily foreseeable, including
4
Cohen, 159 Cal.App.4th 1476, relied upon by the Hass Family, is not to the contrary. In
that case, the injured plaintiff agreed “ ‘to assume responsibility for the risks identified
herein and those risks not specifically identified.” (Id. at p. 1486.) All of the identified
risks involved the unpredictability of horses. (Id. at pp. 1485-1486.) The court found the
language in the release ambiguous as to whether the “ ‘risks not specifically identified’ ”
involved all possible risks (including negligent conduct on the part of the trail guide) or
only non-specified risks involving the horses. (Ibid.) In doing so, the appellate court
expressly distinguished those cases, like this one, involving broad releases covering any
and all injuries arising out of the recreational activity at issue. (Id. at pp. 1489-1490.)
14
without limitation personal injury, property damage or death that arise from participation
in the event.” (Italics added.) Since the signator, in the first part of the sentence, has
already acknowledged understanding the contents of the waiver—which includes the
statement that there are risks inherent in participating—it seems unlikely that he or she
would be asked to acknowledge such an understanding a second time in the latter part of
the sentence. Rather, the much more reasonable interpretation of this second clause is
that the signator is agreeing to shoulder—i.e., take on or otherwise assume—the dangers
and risks inherent in the activity.
Finally, in construing the instant Release, we are cognizant of the fact that “[i]n
cases arising from hazardous recreational pursuits, to permit released claims to be
brought to trial defeats the purpose for which releases are requested and given, regardless
of which party ultimately wins the verdict. Defense costs are devastating. Unless courts
are willing to dismiss such actions without trial, many popular and lawful recreational
activities are destined for extinction.” (Street Racers, supra, 215 Cal.App.3d at p. 938.)
While certainly imperfect, we believe that the instant Release was intended to be, and
was accepted as, a comprehensive assumption of all risks associated with race
participation. We therefore agree with the trial court that the Release constitutes a
complete defense to a wrongful death action based on ordinary negligence.
2. Public Policy
The Hass Family, however, argues that, even if the Release might otherwise be
deemed a valid bar to their negligence claim, it is void as against public policy to the
extent it purports to apply to the provision of emergency medical services, as such
services implicate the public interest. Civil Code section 1668 provides that “[a]ll
contracts which have for their object, directly or indirectly, to exempt any one from
responsibility for his own fraud, or willful injury to the person or property of another, or
violation of law, whether willful or negligent, are against the policy of the law.” A
contractual provision exculpating a party from liability is invalid under this statute if it
“affects the public interest.” (Tunkl v. Regents of University of California (1963) 60
Cal.2d 92, 96, 98 (Tunkl).)
15
In Tunkl, supra, 60 Cal.2d 92, our high court identified six characteristics typical
of contracts affecting the public interest: “ ‘[1] It concerns a business of a type generally
thought suitable for public regulation. [2] The party seeking exculpation is engaged in
performing a service of great importance to the public, which is often a matter of
practical necessity for some members of the public. [3] The party holds himself out as
willing to perform this service for any member of the public who seeks it, or at least any
member coming within certain established standards. [4] As a result of the essential
nature of the service, in the economic setting of the transaction, the party invoking
exculpation possesses a decisive advantage of bargaining strength against any member of
the public who seeks his services. [5] In exercising a superior bargaining power the party
confronts the public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain protection
against negligence. [6] Finally, as a result of the transaction, the person or property of
the purchaser is placed under the control of the seller, subject to the risk of carelessness
by the seller or his agents.’ ” (Id. at pp. 98-101, fns. omitted.) Not all of these factors
need to be present for an exculpatory contract to be voided as affecting the public
interest. (Id. at p. 98.) However, in Tunkl, the Supreme Court found all six factors were
implicated and, on that basis, concluded that a release from liability for future negligence
imposed as a condition for admission to a charitable research hospital affected the public
interest and was thus invalid. (Id. at pp. 94, 101-102.) In making this determination, our
high court found “hardly open to question” the fact that “the services of the hospital to
those members of the public who are in special need of the particular skill of its staff and
facilities constitute a practical and crucial necessity.” (Id. at p. 101.)
In contrast, California courts have consistently declined to apply the Tunkl factors
to invalidate exculpatory agreements in the recreational sports context. (See Street
Racers, supra, 215 Cal.App.3d 934 [upholding release in case claiming lack of competent
medical attention/rescue equipment]; see also Platzer v. Mammoth Mountain Ski Area
(2002) 104 Cal.App.4th 1253, 1259 [fall from chairlift during ski lesson]; Randas v.
YMCA of Metropolitan Los Angeles (1993) 17 Cal.App.4th 158, 161-162 [swim class];
16
Paralift, supra, 23 Cal.App.4th at p. 756 [skydiving]; Saenz, supra, 226 Cal.App.3d at
p. 764 [commercial river rafting]; Madison, supra, 203 Cal.App.3d at pp. 593, 597-599
[scuba diving]; Okura v. United States Cycling Federation (1986) 186 Cal.App.3d 1462,
1464, 1466-1468 [bicycle race].) Although they acknowledge the current state of
California law, the Hass Family invites us to revisit the issue based on an analysis of the
Tunkl factors by the Washington Supreme Court in Vodopest v. MacGregor (Wash. Sup.
Ct. 1996) 128 Wn.2d 840 (Vodopest). In that case, the plaintiff agreed to join a mountain
trek that was designed as a research trip to test the efficacy of a breathing technique used
to eliminate high altitude sickness. (Id. at pp. 843-844.) Portions of the research
proposal were submitted to the University of Washington Human Subjects Review
Committee (University) for approval. (Id. at p. 845.) Prior to the trek, the plaintiff
executed a broad release in researcher MacGregor’s favor. (Ibid.) A similar release
which included the University was rejected by the University as invalid because “releases
from liability for negligence are not allowed as a part of any approved study, as the
federal government does not allow exculpatory language in human subject
experimentation.” (Id. at p. 846.) Ultimately, the plaintiff suffered a cerebral edema
from altitude sickness on the trek and sued MacGregor for negligence and gross
negligence. (Id. at p. 847.)
The sole issue on appeal in Vodopest was whether the release signed by the
plaintiff violated public policy and was thus unenforceable. (Vodopest, supra, 128
Wn.2d at p. 848.) The court noted that medical research was a significant component of
the trek and that the “critical question” in the case was “whether the alleged conduct
giving rise to the cause of action for negligence occurred in the context of the mountain
trekking or within the scope of the research project.” (Id. at pp. 850, 852-853.) It
concluded—after consideration of the six Tunkl factors—that to the extent McGregor
attempted to use the release “to release herself as a researcher from negligent acts
performed in the furtherance of medical research,” it was unenforceable as violative of
public policy. (Id. at pp. 853-862.) In particular, the court opined that “there are critical
17
public policy reasons to maintain the usual standard of care in settings where one person
is using another as a medical research subject.” (Id. at p. 856.)
Vodopest is obviously distinguishable on its facts and we reject the Hass Family’s
invitation to depart from long existing California precedent based on this Washington
decision. Many recreational activities may require the ancillary provision of first aid or
emergency medical services by event organizers, but that fact alone does not change such
pursuits into anything other than the voluntary leisure pastimes that they are. In
particular, with reference to the Tunkl factors, we note that half marathons are not an
activity of great importance to the general public and are certainly not a matter of
necessity. No racer is required to enter a particular event or to run it in any particular
way. (Cf. Okura, supra, 186 Cal.App.3d at p. 1468 [bicycle race participant retains
complete control and can drop out of the race or adjust his pace at any time; organizers
have no control over how the participant approaches the race].) The Tunkl court, itself,
made clear that such private, voluntary exculpatory contracts are permissible: “While
obviously no public policy opposes private, voluntary transactions in which one party, for
a consideration, agrees to shoulder a risk which the law would otherwise have placed
upon the other party, the above circumstances [admission to research hospital] pose a
different situation. In this situation the releasing party does not really acquiesce
voluntarily in the contractual shifting of the risk, nor can we be reasonably certain that he
receives an adequate consideration for the transfer.” (Tunkl, supra, 60 Cal.2d at p. 101.)
Here, Hass was permitted to make the voluntary decision, in return for being allowed to
participate in the race, to shoulder the risk of RhodyCo’s potential negligence. “ ‘ “ ‘The
power of the courts to declare a contract void for being in contravention of sound public
policy is a very delicate and undefined power, and . . . should be exercised only in cases
free from doubt.’ ” ’ ” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747,
777, fn. 53 (Santa Barbara).) We decline to exercise it here.
3. Gross Negligence
The final issue with respect to the impact of the Release in this matter is whether
the Hass Family has raised a triable issue of material fact as to whether RhodyCo acted
18
with gross negligence in its management of the Half Marathon. Even if the Release was
sufficient to block a claim for ordinary negligence—as we have held—it is insufficient,
as a matter of public policy, to preclude liability for gross negligence. (Santa Barbara,
supra, 41 Cal.4th at p. 751 [“an agreement made in the context of sports or recreational
programs or services, purporting to release liability for future gross negligence, generally
is unenforceable as a matter of public policy”].) For purposes of this distinction, 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.” (Id. at pp. 753-754.) “ ‘[M]ere nonfeasance, such as the failure to discover a
dangerous condition or to perform a duty,’ ” amounts to ordinary negligence. (Fritelli,
Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 48.) In contrast,
“ ‘[g]ross negligence’ long has been defined in California and other jurisdictions as either
a “want of even scant care” or “an extreme departure from the ordinary standard of
conduct.” ’ ” (Santa Barbara, supra, 41 Cal.4th 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 (Gore); see also Anderson v. Fitness Internat., LLC (2017) 4
Cal.App.5th 867, 881.) In assessing where on the spectrum a particular negligent act
falls, “ ‘[t]he amount of care demanded by the standard of reasonable conduct must be in
proportion to the apparent risk. As the danger becomes greater, the actor is required to
exercise caution commensurate with it.’ ” (Gore, supra, 110 Cal.App.3d at p. 198.)
In the present case, we agree with both parties that the trial court erred by refusing
to consider the Hass Family’s claim of gross negligence because they had not pled gross
negligence in their Complaint. Several appellate courts have opined that California does
not recognize a separate cause of action for gross negligence. (Saenz, supra, 226
Cal.App.3d at p. 766, fn. 9; Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 108,
fn. 5, disapproved on other grounds in Knight v. Jewett (1992) 3 Cal.4th 296, 306-309
(Knight).) In Santa Barbara, the Supreme Court did not definitively resolve this issue,
commenting only that it did not view its holding invalidating releases for future gross
19
negligence “as recognizing a cause of action for gross negligence.” (Santa Barbara,
supra, 41 Cal.4th at pp. 779-780.) Instead, as is more relevant here, the high court went
on to declare: “Our holding simply imposes a limitation on the defense that is provided
by a release. A plaintiff is not required to anticipate such a defense [citation]; instead, the
defendant bears the burden of raising the defense and establishing the validity of a release
as applied to the case at hand.” (Id. at 780, fn. 58.) Thus, regardless of whether gross
negligence can be a separate cause of action, and/or the Hass Family could have alleged
gross negligence in the Complaint in anticipation of RhodyCo’s likely defense, they were
not required to do so. The consequences of this pleading decision in the context of a
summary judgment motion were summarized in Westlye v. Look Sports, Inc. (1993) 17
Cal.App.4th 1715—which involved alleged negligence by a ski rental company in the
adjustment of ski bindings—as follows: “Had plaintiff anticipated the defense of the
release agreement in his complaint and alleged facts suggesting [its invalidity], the matter
would have been a material issue which defendants would have had to refute in order to
obtain summary adjudication.” (Id. at pp. 1723-1724, 1739-1740; see also id. at p. 1740
[“ ‘If . . . the plaintiff pleads several theories or anticipates affirmative defenses by a
show of excusing events or conditions, the challenge to the opponent is made by the
complaint, requiring the moving defendant to affirmatively react to each
theory and excusing or justifying event, or condition which supports a theory, if the
motion is to be successful’ ”].) In contrast, “[s]ince plaintiff’s complaint said nothing
about the agreement, the matter of [its validity] was not a material issue for purposes of
defendants’ initial showing on its motion for summary adjudication. [The defendant] met
its initial burden by adducing evidence of the . . . agreement and plaintiff’s execution.
The burden thereafter shifted to plaintiff to raise a triable issue of material fact.” (Id. at p.
1740.)
Similarly, here, although the Hass Family set forth certain facts in the Complaint
which could be viewed as supporting a claim of gross negligence, it cannot be said that
the Complaint—which does not even mention the Release—anticipated the Release
defense or raised gross negligence as a material issue which RhodyCo was required to
20
refute in order to succeed on summary judgment. Instead, RhodyCo met its initial burden
by producing evidence of the existence of the Release and its execution by Hass. The
burden then shifted to the Hass Family to raise a triable issue of material fact as to gross
negligence.
Viewing the evidence in the light most favorable to the Hass Family, we believe
they have met their burden in this case, making summary judgment inappropriate. 5 It is
true that summary judgment on the issue of gross negligence may be warranted where the
facts fail to establish an extreme departure from the ordinary standard of care as a matter
of law. However, “[g]enerally it is a triable issue of fact whether there has been such a
lack of care as to constitute gross negligence.” (Decker v. City of Imperial Beach (1989)
209 Cal.App.3d 349, 358.) In this case, there are clearly factual and credibility questions
that need to be answered regarding exactly what was required under the terms of the
EMS Plan. For example, there is conflicting evidence as to whether the “finish line”
included the crowded post-race expo area for purposes of compliance with the EMS Plan,
and it must also be established exactly what medical personnel and equipment were
required to be stationed at the finish line. We will not here catalogue every conceivable
argument that the Hass Family could present in an attempt to prove grossly negligent
conduct by RhodyCo in this context. We conclude only that, viewing the evidence in the
light most favorable to them, it is possible that the Hass Family could establish that,
despite the potential for grave risk of harm in the sport of long-distance running,
RhodyCo failed to implement the EMS Plan in several material ways and that its
management of the Half Marathon—in particular with respect to the allocation of medical
resources to the finish line and communication among race personnel—constituted an
5
Both parties agree that the issue of gross negligence was adequately briefed before the
trial court and urge us to reach the merits here. We are in accord and thus have
independently reviewed the matter to determine whether a triable issue has been
adequately presented. (See Automobile Antitrust Cases, supra, 1 Cal.App.5th at pp. 150-
151 [“ ‘[t]he sole question properly before us on review of the summary judgment [order]
is whether the judge reached the right result . . . whatever path he [or she] might have
taken to get there’ ”].)
21
extreme departure from the standard of care for events of its type. This is sufficient to
raise a triable issue of fact with respect to gross negligence. 6
In sum, we have concluded that the Release is not void on public policy grounds
and that it is adequate to bar the Hass Family’s action for ordinary negligence. However,
since we have additionally determined that a triable issue of material fact exists as to
whether RhodyCo’s provision of emergency medical services was grossly negligent, the
trial court’s new trial order reversing its initial grant of summary judgment was
appropriate, unless the Hass Family’s negligence action is completely barred by the
doctrine of primary assumption of the risk. We therefore turn finally to that question.
C. Primary Assumption of the Risk
In Knight, supra, 3 Cal.4th 296, the Supreme Court considered the continued
applicability of the assumption of the risk doctrine in light of the court’s prior adoption of
comparative fault principles. (Id. at pp. 299-300.) Specifically, our high court
distinguished between two different types of assumption of the risk: primary assumption
of the risk—“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—“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.” (Id. at p. 308.) When
6
We note in this regard that RhodyCo’s track record prior to Hass’s death, while
exemplary, may be attributable to luck rather than expertise. Further, whether the 11-
minute delay in applying the AED in this case was grossly negligent is a complex inquiry
that cannot be established merely by reference to other cases in which various time delays
were found not to raise a triable issue as to gross negligence. (See, e.g., Grebing v. 24
Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 639; City of Santa Cruz v. Superior
Court (1988) 198 Cal.App.3d 999, 1002, 1007.) Finally, the fortuitous presence of Dr.
Whitehill on the scene of Hass’s collapse does not necessarily make any potential
RhodyCo negligence immaterial. As the Hass Family convincingly states: “[P]laintiffs
have never faulted RhodyCo for failing to provide a medical doctor to personally deliver
CPR. They fault RhodyCo for failing to hire a medical doctor to act as the medical
director to oversee the provision of emergency medical services—to ensure that the right
medical personnel and equipment are provided and correctly deployed.” Dr. Whitehill
patently did not fulfill this role.
22
applicable, primary assumption of the risk “operate[s] as a complete bar to the plaintiff’s
recovery.” (Id. at p. 315.) In contrast, secondary assumption of the 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.” (Ibid.; id. at p. 314 [“a
jury in a ‘secondary assumption of risk’ case would be entitled to take into consideration
a plaintiff’s voluntary action in choosing to engage in an unusually risky sport . . . in
determining whether or not the plaintiff should properly bear some share of responsibility
for the injuries he or she suffered”]; see also Kahn, supra, 31 Cal.4th at p. 1003 [in a
secondary assumption of the risk case, “the plaintiff’s knowing and voluntary acceptance
of the risk functions as a form of contributory negligence”].)
The Supreme Court further concluded in Knight that “the question whether the
defendant owed a legal duty to protect the plaintiff from a particular risk of harm . . .
[turns] 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.” (Knight, supra, 3
Cal.4th at p. 309.) Although Knight dealt with the duty owed by a coparticipant in
recreational activity (an informal touch football game on Super Bowl Sunday), it also
discussed the potential liability here at issue, that of operators and organizers of
recreational events. (Id. at pp. 300-301, 315-317.) For instance, the Knight court opined:
“In the sports setting . . . conditions or conduct that otherwise might be viewed as
dangerous often are an integral part of the sport itself. Thus, although moguls on a ski
run pose a risk of harm to skiers that might not exist were these configurations removed,
the challenge and risks posed by the moguls are part of the sport of skiing, and a ski
resort has no duty to eliminate them. [Citation.] . . . [¶] Although defendants generally
have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport
itself, it is well established that defendants generally do have a duty to use due care not to
increase the risks to a participant over and above those inherent in the sport. Thus,
although a ski resort 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,
23
posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is
assumed by a participant.” (Id. at pp. 315-316, italics added.) The high court also cited
with approval a case involving an injury from a thrown baseball bat in which the jury
returned a verdict in favor of the baseball player (since throwing bats is inherent in the
game), but implicitly recognized “the duty of the stadium owner to provide a reasonably
safe stadium with regard to the relatively common (but particularly dangerous) hazard of
a thrown bat.” (Id. at p. 317.) Finally, Knight acknowledged a line of cases in which the
duty of an operator is defined “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.” (Id. at p. 317.)
Twenty years later, in Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148 (Nalwa),
the Supreme Court revisited the scope of the primary assumption of the risk doctrine in
the specific context of the duty owed by an operator/organizer. The Nalwa court
summarized the doctrine as follows: “ ‘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.’ [Citation.] The primary assumption of risk doctrine, a rule of
limited duty, developed to avoid such a chilling effect. [Citations.] 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.” (Id. at p. 1154.) Applying this analytical framework to the case
at hand, the high court concluded that the operator of a bumper car ride at an amusement
park had no duty to protect the plaintiff from the collision which fractured her wrist. (Id.
at pp. 1152, 1157-1158, 1162-1163.) Rather, “[l]ow-speed collisions between the
padded, independently operated cars are inherent in—are the whole point of—a bumper
car ride.” (Id. at p. 1157.) Thus, “ ‘[i]mposing liability would have the likely effect of
the amusement park either eliminating the ride altogether or altering its character to such
a degree—by, for example, significantly decreasing the speed at which the minicars could
24
operate—that the fun of bumping would be eliminated, thereby discouraging patrons
from riding.’ ” (Id. at pp. 1157-1158.)
Here, RhodyCo asserts that the primary assumption of the risk doctrine serves as a
complete bar to the Hass Family’s negligence claim, and thus the trial court erred in
concluding otherwise. Specifically, RhodyCo argues that the risk of cardiac arrest is
inherent to the sport of long-distance running and that, since it did nothing to increase
Hass’s risk of suffering cardiac arrest in the way it conducted the Half Marathon, it owed
no further duty to the Hass Family. In particular, according to RhodyCo—under the test
articulated in Nalwa—it had no duty minimize Hass’ risk of death from cardiac arrest.
Or, put another way, it had no duty to reduce the natural consequences of Hass’s cardiac
arrest or increase his chances of recovery.
In taking this position, RhodyCo acknowledges that the appellate court in Saffro v.
Elite Racing, Inc. (2002) 98 Cal.App.4th 173 (Saffro) held that a race producer has a duty
to conduct a “reasonably safe event,” which “requires it to take reasonable steps to
‘minimize the risks without altering the nature of the sport.’ ” (Id. at p. 175.) In Saffro, a
marathon runner suffered a grand mal seizure after a race and was diagnosed with severe
hyponatremia, likely caused by his inability to consume adequate amounts of water and
fluids containing electrolytes (such as Gatorade) during the race. (Id. at p. 176.)
Although the race organizer sent written materials to participants prior to the event
indicating that such liquids would be provided in sufficient quantities, the evidence
suggested that they were not. (Id. at pp. 176-177.) The trial court granted summary
judgment in favor of the race organizer, concluding that hyponatremia is an inherent risk
of running a marathon. (Id. at pp. 177-178.) The appellate court reversed, stating that a
race organizer’s duty to conduct a reasonably safe event includes “the obligation to
minimize the risks of dehydration and hyponatremia by providing adequate water and
electrolyte fluids,” especially where the race organizer had made representations to the
participants that such fluids would be available. (Id. at p. 179.) Since Saffro had
presented sufficient evidence to create a triable issue of fact as to whether the race
organizer had breached this duty, summary judgment was improper. (Id. at pp. 179-181;
25
see also Rosencrans, supra, 192 Cal.App.4th 1072, 1079, 1082-1083 [although collisions
with coparticipants are an inherent risk of motocross, operator of a motocross track has a
duty to minimize this risk without altering the nature of the sport by providing a warning
system, such as caution flaggers; triable issue of fact existed as to whether failure to
provide a caution flagger constituted gross negligence].) RhodyCo claims that Saffro is
inapplicable both because it is a secondary assumption of the risk case and because the
“duty to minimize risk” language from Knight that Saffro and other cases have “latched
onto” is dicta which has been abrogated by the Supreme Court’s subsequent decision in
Nalwa.
We disagree with RhodyCo that the Nalwa court’s formulation of the primary
assumption of the risk doctrine somehow supplanted the high court’s earlier discussion of
the matter in Knight, particularly with respect to the Supreme Court’s statements
regarding an organizer/operator’s duty “to minimize the risks without altering the nature
of the sport.” (See Knight, supra, 3 Cal.4th at p. 317.) Rather, Nalwa—far from
disagreeing with Knight— referenced it as the “seminal decision explicating and applying
primary assumption of risk in the recreational context.” (Nalwa, supra, 55 Cal.4th at p.
1155.) Moreover, Nalwa’s formulation of the limited duty existing in a primary
assumption of the risk case— “the duty not to act so as to increase the risk of injury over
that inherent in the activity”—comes directly from Knight. (Nalwa, supra, 55 Cal.4th at
pp. 1154-1155, 1162-1163.) Finally, and most importantly for our purposes, Nalwa did
not reject cases such as Saffro and Rosencrans which concluded, based on language
found in Knight, that operators/organizers have a duty to minimize risks without altering
the nature of the sport. (Nalwa, supra, 55 Cal.4th at p. 1163 & fn. 7.) Instead, it
characterized them as “decisions addressing the duty to reduce extrinsic risks of an
activity” and found them distinguishable in that particular case because it concluded that
the risk of injury from bumping—at any angle—was not an extrinsic risk, but was instead
a risk inherent to riding bumper cars. (Id. at pp. 1157-1158, 1163.)
Indeed, Nalwa expressly states that “[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
26
those inherent’ in the activity (Knight, supra, 3 Cal.4th at p. 316) by failing to provide
routine safety measures such as seat belts, functioning bumpers and appropriate speed
control.” (Nalwa, supra, 55 Cal.4th at p. 1163.) Thus, Nalwa actually reaffirms Knight’s
conclusions regarding the duties owed to participants by operators/organizers of
recreational activities. In short, such operators and organizers have two distinct duties:
the limited duty not to increase the inherent risks of an activity under the primary
assumption of the risk doctrine and the ordinary duty of due care with respect to the
extrinsic risks of the activity, which should reasonably be minimized to the extent
possible without altering the nature of the activity. Nalwa explains the interplay between
these two types of duties by confirming that an operator or organizer’s negligence with
respect to extrinsic risks “might violate its ‘duty to use due care not to increase the risks
to a participant over and above those inherent’ in the activity.” (Nalwa, supra, 55 Cal.4th
at p. 1163.)
In the present case, both parties acknowledge that cardiac arrest is an inherent risk
of the sport of long-distance running. Further, it is not suggested on these facts that
RhodyCo did anything that increased the risk that Hass would have a heart attack. 7
Moreover, requiring runners to slow down or take breaks in order to decrease this
inherent risk would alter the character of racing to such a degree that it would likely
discourage runners from participating. However, as both Knight and Nalwa teach us, this
is not the end of the inquiry. While the operator or organizer of a recreational activity has
no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize
extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.
(Nalwa, supra, 55 Cal.4th at p. 1163 [while risk of injury from bumping bumper cars is
generally low, an operator could violate its duty not to increase this inherent risk by
7
In this regard, we do not find persuasive the Hass Family’s related argument that,
merely by putting on a large race event on public lands, RhodyCo increased the risk of
harm inherent in long-distance running because the crowds and street closures disrupted
the local 911 system. This risk appears typical of events of this type and would be
understood as a risk inherent in participation. Indeed, the Hass Family’s own expert
opined that the applicable standard of care already takes such factors into account.
27
failing to provide routine safety measures]; Knight, supra, 3 Cal.4th at pp. 315-316
[negligent maintenance of towropes by ski resort could violate duty not to expose skiers
to increased risk of harm]; Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th
1283, 1297-1302 [crash landings caused by failure to safely pilot a hot air balloon are an
inherent risk of hot air ballooning, but an operator has a duty not to increase that risk by
failing to instruct participants on safe landing procedures, a customary practice in the
ballooning industry]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594,
610-611 [although contact with the floor is an inherent risk in dancing, school may have
increased student’s risk of harm through failure to properly disseminate its no-flip
policy]; Rosencrans, supra, 192 Cal.App.4th at pp. 1083-1086 [negligent failure to
provide collision warning system in motocross]; Saffro, supra, 98 Cal.App.4th at pp. 175,
179-181 [duty not to increase risk of dehydration and hyponatremia by unreasonably
failing to provide adequate fluids]; Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th
354, 364-367 [although falling is an inherent risk of skiing, failure to mark off race area
containing jumps which an ordinary skier would not expect to encounter may breach duty
not to increase inherent risk]; Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th
127, [although being hit by a golf ball is an inherent risk of golfing, golf course owner
had a duty to design course to minimize the risk of being hit where possible without
altering the nature of golf].) As the Fourth District recently opined in Grotheer, “[w]hat
the primary assumption of risk doctrine does not do . . . is absolve operators of any
obligation to protect the safety of their customers. (Knight, supra, 3 Cal.4th at pp. 317-
318.) As a general rule, where an operator can take a measure that would increase safety
and minimize the risks of the activity without also altering the nature of the activity, the
operator is required to do so.” (Grotheer, supra, 14 Cal.App.5th at p. 1300.) And, in
Solis, the appellate court succinctly illustrated the issue raised by these cases as follows:
“[F]alling off a horse is an inherent risk of horseback riding. But if a person put a barrel
in the middle of the Churchill Downs racetrack, causing a collision and fall, we would
not say that person owed no duty to the injured riders, because falling is an inherent risk
of horseback riding.” (Solis, supra, 94 Cal.App.4th at p. 365.)
28
When viewed under this analytical framework, Rotolo v. San Jose Sports &
Entertainment, LLC (2007) 151 Cal.App.4th 307 (Rotolo), disapproved on another
ground as stated in Verdugo v. Target Corp. (2014) 59 Cal.4th 312, 327, and Connelly v.
Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 (Connelly)—two cases relied
upon by RhodyCo—are not inconsistent. In Rotolo, parents of a teenager who died as a
result of sudden cardiac arrest while playing ice hockey sued the ice hockey facility for
wrongful death, claiming that the facility had a duty to notify facility users of the
existence and location of the facility’s AED. (Rotolo, supra, 151 Cal.App.4th at p. 313.)
The appellate court disagreed, noting that sudden cardiac arrest is a risk inherent in
playing strenuous sports and that the facility had done nothing to increase this risk. (Id.
at p. 334.) During the course of its analysis, the Rotolo court stated: “We have found no
authority for the proposition that a sports facility operator has a duty to reduce the effects
of an injury that is an inherent risk in the sport, or to increase the chances of full recovery
of a participant who has suffered such a sports-related injury, or to give notice regarding
any first aid equipment that may be available for such a purpose.” (Id. at pp. 334-335.)
In making this determination, however, the Rotolo court searched exhaustively for a duty
that the facility could have breached in this context and could not find one. (Id. at pp.
319-339.) In particular, it noted that the facility had not breached its duties to keep the
property in a reasonably safe condition or to summon emergency medical aid. 8 (Id. at pp.
316-317, 332-334.) Since the sports facility had not acted negligently with respect to any
risks extrinsic to the sport of hockey, thereby increasing its inherent risks, the primary
assumption of the risk doctrine barred recovery. (Id. at 334-335.) Similarly, in Connelly,
the plaintiff argued that the ski resort had insufficiently padded a ski lift tower, thereby
causing him serious injury when he collided with it. (Connelly, supra, 39 Cal.App.4th at
8
Indeed, the Rotolo court expressly distinguished secondary assumption of the risk
cases—in which “the owner or operator of a sports facility has contributed to the harm by
designing or maintaining a facility in such a way as to unreasonably increase the risks
inherent in the sport”—on this basis. (Id. at p. 334.) Here, as discussed above—and in
obvious contrast to Rotolo—RhodyCo was required to create and implement an approved
EMS Plan as a condition of its permit authorizing the race and attendant street closures.
29
pp. 10-11.) The appellate court concluded that colliding with a ski lift tower is an
inherent risk of skiing and that the ski resort had done nothing to increase this risk by
padding the towers, which the resort had no duty to do in the first place. (Id. at p. 12-13.)
In essence, the court concluded that the ski resort had not breached its underlying duty to
provide a reasonably safe ski resort and thus the primary assumption of the risk doctrine
barred the plaintiff’s negligence action. (See id. at pp. 11-14.)
It is undisputed in this case that RhodyCo has provided event management and
production services for “high profile” running and walking events for over 25 years and
that, while these events involved over 1.5 million participants, Hass was the first fatality.
Thus, while death from cardiac arrest is undeniably a risk associated with long-distance
running, it appears from RhodyCo’s own facts to be a slight one. The question therefore
remains whether RhodyCo, as the organizer of the Half Marathon, acted negligently in its
provision of emergency medical services—a risk extrinsic to the sport of long-distance
running—in such a way that it exposed Hass to an increased risk of harm over and above
that generally inherent in the activity itself. Since we have previously concluded that the
Hass Family has raised a triable issue of fact as to whether RhodyCo was grossly
negligent in this regard, the primary assumption of the risk doctrine does not act as a
complete bar to the present negligence action. 9 The trial court’s decision to reverse itself
on this ground and allow the case to continue was therefore not error.
As a final matter, we note that imposing a duty of due care with respect to
“extrinsic” risks for operators and organizers of recreational activities makes sense based
on the policies underlying the primary assumption of the risk doctrine. As stated above
and as articulated in Nalwa, supra, 55 Cal.4th at pages 1156-1157: “The primary
9
Although, under a secondary assumption of the risk analysis, Hass might ultimately be
found to have contributed to his risk of injury by voluntarily engaging in the sport of
long-distance running. (See Knight, supra, 3 Cal.4th at p. 314.) Thus, RhodyCo’s
attempt to distinguish secondary assumption of the risk cases as irrelevant to a primary
assumption of the risk analysis is not well taken. Such cases are highly relevant because
they involve potential breach of an underlying duty which increased the inherent risk of
the activity in question, making primary assumption of the risk inapplicable.
30
assumption of risk doctrine rests on a straightforward policy foundation: the need to
avoid chilling vigorous participation in or sponsorship of recreational activities by
imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.
It operates on the premise that imposing such a legal duty ‘would work a basic
alteration—or cause abandonment’ of the activity. . . . [¶] . . . Allowing voluntary
participants in an active recreational pursuit to sue other participants or sponsors for
failing to eliminate or mitigate the activity’s inherent risks would threaten the activity’s
very existence and nature.” (Id. at pp. 1156-1157.) Moreover, “active recreation,
because it involves physical activity and is not essential to daily life, is particularly
vulnerable to the chilling effects of potential tort liability for ordinary negligence.” (Id. at
p. 1157.) The Nalwa court counseled that the doctrine’s parameters should be drawn
according to this underlying policy goal. (Ibid.) Obviously, requiring an operator or
organizer of recreational activities to provide a reasonably safe event, reasonably
maintained attractions, and/or customary safety warnings—far from chilling vigorous
participation in such activities—would almost certainly increase their attractiveness to
potential participants. Moreover, an owner or event organizer is still protected from
liability with respect to the inherent risks of these activities. And, given that participation
in these recreational pursuits is almost always contingent on the signing of a release, such
owners and organizers are generally also relieved of the consequences of their ordinary
negligence. Allowing owners and organizers to avoid accountability for their gross
negligence in this context, based on the primary assumption of the risk doctrine, would
contravene public policy, not support it. (Santa Barbara, supra, 41 Cal.4th at pp. 750-
751; see also id. at pp. 767-776 [rejecting as unsupported by empirical evidence the
assertion that refusing to uphold agreements releasing liability for future gross negligence
will lead to the extinction of many popular and lawful recreational activities].)
III. DISPOSITION
The judgment is affirmed in part and reversed in part, and the matter remanded for
further proceedings consistent with this opinion. In particular, the trial court is instructed
31
to enter an order denying RhodyCo’s motion for summary judgment. The Hass Family is
entitled to its costs on appeal.
32
_________________________
REARDON, J.
We concur:
_________________________
STREETER, ACTING P. J.
_________________________
SMITH, J.*
*Judge of the Superior Court of California, County of Alameda, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
A142418 Hass v. RhodyCo
33
Trial Court: City and County of San Francisco Superior Court
Trial Judge: Hon. A. James Robertson II
Counsel for Plaintiffs and Lewis Brisbois Bisgaard & Smith LLP
Appellants: Jeffry A. Miller
Lann G. McIntyre
Shawn A. Toliver
Helen L. Greenberg
Counsel for Defendant and Law Office of Gerald Clausen
Respondent: Gerald Clausen
Abramson Smith Waldsmith LLP
Robert J. Waldsmith
Jeffrey R. Smith
A142418 Hass v. RhodyCo
34