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MICHAEL T. SHEPHERD, SBN 58813
LAW OFFICES OF MICHAEL T. SHEPHERD 10/13/2020
1074 EAST AVENUE, SUITE 0
CHICO, CA 95926
Phone: (530) 893-3700
Fax: (530) 893-1579
In Association with
LAWRENCE A. PURITZ
LAW OFFICES OF LAWRENCE A. PURITZ
P.O. Box 935
Chico, CA 95927
Phone: (530) 343-1614
Fax: (530) 343-1629
Attorneys for Plaintiffs, Candice L. Doherty,
10
Lauren G. Isaacson, Erynn Doherty
SETH I ROSENBERG
12 EMERGENT LLP
5 Third Street, Suite 1000
13 San Francisco, CA 94103
Phone: (415) 894-9284
14
Fax: (415) 276-8929
15 Attorneys for Plaintiff J. %hippie
16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
17
COUNTY OF BUTTE
18
CANDACE L. DOHERTY, LAUREN G. Case No: 19CV02464
ISAACSON, ERYNN DOHERTY,
JENNIFER WHIPPLE, PLAINTIFFS'EMORANDUM OF
20 POINTS 4 AUTHORITIKS IN
OPPOSITION TO DEFENDANT
21
Plaintiffs, COUNTY OF BUTTE'S MOTION FOR
SUMMARY JUDGMENT
22 vs.
Date: November 4, 2020
23 Time: 9: 00AM
COUNTY OF BUTTE, JIM RAE VOYLES Dept.: TBA
24 and DOES 1 THROUGH 30,
Complaint File: 8/14/2019
25 Defendants. Cross-Complaint Filed: 9/5/20019
26 TRIAL: June 29, 2021
27
AND ALL RELATED CROSS-ACTIONS.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. t9CVo2464
TABLE OF CONTENTS
I. INTRODUCTION
II. FACTUAL BACKGROUND .
III.ARGUMENT
A. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY
AD JUDICATION MOTIONS
B. PRIMARY ASSUMPTION OF RISK ("PAOR") DOCTRINE IN CALIFORNIA
a. NO CALIFORNIA COURT HOLDS TI-IAT THE PAOR DOCTRINE IS
APPLICABLE TO SOLO BICYCLE RIDING AND, INSTEAD, CASES HOLD THA
EXTENDING THE DOCTRINE IN THAT REGARD WOULD BE IMPROPER
(Question No. 1) 6
b. CALIFORNIA COURTS HOLD THAT THE COUNTY ALLEGEDLY MAINTIAN-
TAINING ITS ROADWAY IN A DANGEROUS CONDITTION CANNOT BE
HELD TO BE AN "INHERENT RISK" OF SOLO BICYCLING (Question No.2)
c. YOU CAN REMOVE NEGLIGENTLY MAINTAINED ROADWAYS FROM SOLO
BICYCLE RIDING WITHOUT CHANGING THE FUNDAMENTAL NATURE OF
SOLO BICYCLE RIDING (Question No. 3) . .11
d. PLAINTIFF RAISES A TRIABLE ISSUE AS TO WHETHER DEFENDANT'S
CONDUCT INCREASED TE-IE INI-IERENT RISKS DR. DOHERTY FACED
(Question No. 4) . 12
e. DR. DOHERTY SIGNING WAIVERS WITH ENTITIES OTHER THAN
DEFENDANT AND FOR UNRELATED TIMES/RIDES IS COMPLETELY
IRRELVANT AND, IN FACT, CUTS AGAINST DEFENDANT'S ARGUMENT...14
IV. CONCLUSION . 15
24
LAW OFFICES OF
MICHAEL T. SHEPHERD PLAINTIFFS'EMORANDUM OF POINTS& AUTHORITIES IN OPPOSITION TO DEFENDANT COUNTY OF BUTTE'S MOTION FOR SUMMARY JUDGMENT
TABLE OF AUTHORITIES
CASES
Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 850 .
Alderson v. Santa Clara County (1954)
124 Cal.App.2d 334
Ar=ate v. Bridge Terminal Tiansport, I77c.(2011)
192 Cal.App.4th 419, 427 .
Berlsch v. Mammouih Community Niater Dist. (2016)
247 Cal.App 4" 1201 .8, 9
10
Bianco v.Kearny Moto Park, Inc. (1995)
37 Cal.App 4Ih 184 193 .10
Bush v.Peti ents 1Vithout Partnei.s (1993)
12 17 Cal.App.4" 322, 330 .10
13
Calhoon v. I.eve&is(2000)
l4 81 Cal.App 4II'08
Cheong v. Antablin (1997)
16 Cal.4'I'063, 1066-69
CI7ilds v. County of Santa Barbara (2004)
17
115 Cal.App 4II'4 1, 2, 7,9
Childs v.County of Santa Bai barn (2004)
115 Cal.App.4'I'4 at 71 .
Childs v.County of Santa Barbai a (2004)
115 Cal.App 4Ih 64 at 72
21
Chikls v.County of Santa Barbara (2004)
115 Cal.App.4" 64 at 73 10
Compton v. City of Sat7lee (1993)
24
12 Cal. App.4th 591, 596 .
Consumer Cause, Inc. v. SmileCare (2001)
91 Cal.App.4th 454, 468
Curties v. IIill Top Developers, Inc. (1993)
14 Cal.App 4" 1651, 1656 10
LAW OFFICES OF
MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S
MSJ I9CV02464
BCSC CASE NO.
Got don v.Havasu Palms (2001)
93 Cal.App 4'I'44, 249-51 .10
IItiffinan v.City of'Poway (2000)
84 Cal.App 4'I'75, 992-95 . .10
Jimene~ v. Roseville City School District (2016)
247 Cal.App 4'" 594, 608-611 .
Johnson v.American Standard, Inc. (2008)
43 Cal.4th 56, 64.
Kahn v.East Side Union High School District (2003)
31 Cal.4'I'90 1005-06 12
Knight v.,Iewetl (1992)
3 Cal.4th 296, 311-312 10
Knighl v.Jewett (1992)
12 3 Cal.4th 296, 314-315
13
Knight v.,Iewetl (1992)
3 Cal.4th 296, 315-316 6,12,14
14
15
Knight v.Jewetl (1992)
3 Cal.4th 296, 316-320
16
Morgan v. Fuji Country USA, Inc. 1995)
17 34 Cal.App.4" 127, 134-35 10
Moser v.Ratinoff" (2003)
105 Cal.App O'I'211
Nalwa v. Cedar Fair (2012)
55 Cal.4th 1148, 1152, 1156, 1157-1158 . 5,11
21
Record v. Reason (1999)
73 Cal.App.4th 472, 482
Sanche= v.Swinerlon k 8'alberg Co. (1996)
24 47 Cal.App.4th 1461, 1465
Staten v. Sup. Ct. (1996)
45 Cal.App.4" 1628, 1634
Sweal v. Big Time Auto Racing, Inc. (2004)
117 Cal.App.4'I'301, 1304 14
LAW OFFICES OF
MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S MSI 19CV02464
BCSC CASE NO.
Vine v. Bear Valley Ski Co. (2004)
118 Cal.App.4th 577, 598-600
Williams v. Counly of Sonoma (2020)
WL 5757662 1,2,7, 10, 11, 12
Zavala v. Ance (1997)
58 Cal.App.4th 915, 926
CITATIONS
CAL. CoDE Clv. P. j~437c(c) .
CAL. CQDE Clv. P. j~437c(f)(1) .
12
13
14
17
19
21
24
OF
LAW OFFICES
MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S MSI l9CV02464
BCSC CASE NO.
I. INTRODUCTION
This case concerns the sad and imnecessary passing of a pillar of the Chico community, Dr.
William Doherty, and the profound effect it had on his family consisting of a wife and three
daughters (collectively, "Plaintiffs" ). Dr. Doherty, an avid bicyclist, was riding his bicycle
recreationally on Cohasset Road in Chico, California on July 28, 2018. During an extended uphill
climb, he came upon a long stretch of highly degraded roadway on Cohasset Road, which narrowed
the lane from approximately 9 feet to around 7 feet wide. Defendant County of Butte
(" Defendant" ), who was legally responsible for reasonably maintaining the road, was warned about
the dangerousness of this degraded roadway for years internally and by concerned citizens but did
10 nothing in response.
Following DMV guidelines, Dr. Doherty continued to travel on the degraded road as far to
12 the right as practical. At the same time, a vehicle driven by Defendant Jim Rae Voyles came upon
13 Dr. Doherty travelling in the same direction. Faced with the dilemma of a narrowed road due to
14 road degradation and a center line you are not supposed to cross, Voyles continued in the lane and
15 attempted to pass Dr. Doherty. However, with the lane now too narrow to accommodate both the
16 vehicle and bicycle, Dr. Doherty was struck by the vehicle and Dr. Doherty soon after died from
17 his injuries. In light of these facts, Plaintiffs brought suit against Defendant Voyles for his
18 negligence and Defendant County of Butte as its degraded roadway was a dangerous condition and
19 a substantial factor — indeed, the main factor — in causing the at-issue accident.
20 Presently, Defendant County of Butte moves for Summary Judgment as to its Primary
21 Assumption of Risk ("PAOR") Affirmative Defense, claiming that accidents and injuries,
22 generally, are an "inherent risk" in recreational cycling, including those from encountering
23 degraded roadway. In refuting this argument, two California opinions, one of which with facts
24 almost identical to those at present, conclusively hold that PAOR has no applicability in this case
25 where a bicyclist is injured due to a governmental entity's failure to properly maintain its property.
26 II'illiams v. County of Sonoma, 2020 WL 5757662 (Copy attached as Exhibit 1 for the convenience
27 of the Court and counsel); Childs v. County of Santa Barbara (2004) 115 Cal.App.4'" 64.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
What collectively these two cases (and many others) hold is that: (1) recreational bicycling
would not be an activity that falls within the ambit of PAOR; (2) a bicyclist encountering a
dangerous condition of public property is not an "inherent risk" of recreational bicycling; (3) that
dangerous conditions of public property are not integral to the sport of bicycling such that they
cannot be removed without changing the fundamental nature of recreational bicycling; and (4) a
governmental entity that maintains its roadways in a manner dangerous to vehicle traffic, generally,
increases the inherent risk to vehicle traffic, including bicyclists, thereby precluding applicability of
PAOR.
To prevail on its motion, Defendant County of Butte had to establish that all four just-
10 mentioned findings are actually the complete opposite. Not only did Defendant not meet its burden
in that regard, there is no legal or factual way it ever could. Notably, Defendant County of Butte
12 did not cite even one similar case holding as it asks this court to do now. Indeed, Defendant failed
to even mention, much less distinguish, the almost on-point Childs opinion.'ccordingly, what
Defendant County of Butte seeks here is for this trial court to rule counter to standing appellate law
15 and extend the PAOR to not only where it has never gone before, but where other courts have
16 denied it has any applicability. Herein, Plaintiffs present law and evidence establishing that PAOR
17 cannot apply here as a matter of law or, at a minimum, a triable issue is raised on this issue. Thus,
18 the present motion must fail.
19 II. FACTUAL BACKGROUND
20 The subject accident occurred on July 28, 2018 at approximately 10:20 a.m. on
21 Cohasset Road in an area known as "the narrows" [Plaintiffs'UF 1 j.At the top of the narrows,
22 Dr. Doherty encountered a degraded section of road that forced him toward the center line.
23 Unfortunately, Mr. Voyles driving his pickup truck hit Dr. Doherty from the rear [County's SUFs
24 & 25]. The County was aware that Cohasset Road is regularly used by cyclists and even
25 identifies Cohasset Road as a bike route promoting its use for recreational cycling [Plaintiffs'UFs
26
27
28 'n fairness, Defendant County of Butte could not have discussed the Williams case as the opinion
was issued after it filed its moving papers.
2.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
4 &, 13]. Furthermore, Cohasset Road qualifies as a primary evacuation route giving it a higher
priority in terms of scheduling inspections and maintenance [Plaintiffs'UF 21].
The County had notice of the degraded condition of Cohasset Road and the risk to cyclists
[Plaintiffs'UF 2]. As testified by Chris Barris, the County was aware of this area of road
regularly needing repair for years. The Cohasset residents for years asked the County to maintain
the road so that it would be safe for traffic. As Dr. Shatnawi points out in his Declaration (Ex.17,
5:4-8:2, 11:24-14:13), as early as 2015 the County was aware of the risk due to road degradation in
this area. There is no question that the County had notice of the degraded section.
Even worse, on April 20, 2018, with specific mileage directions to the exact location of the
10 degraded section from Maggie Krehbiel, a long time and well-known Cohasset resident, Dennis
Schmidt, the Public Works Director, and Maureen Kirk, the County Supervisor for the area, drove
12 up Cohasset Road to inspect the road, at least driving past the area. Nevertheless, Mr. Schmidt
chose to take no action to repair the degraded section of road [Plaintiffs SUFs 3, 5 & 7]. As Chris
Barris points out, had he been told, the patch work could have been done by June 1, 2018
15 [Plaintiffs'UF 8]. The County had actual notice and chose to do nothing, taking no steps to repair
or to warn of the degraded, dangerous condition [Plaintiffs'UF 16 & 17].
17 The road degradation reduced the lane width from approximately 9'o approximately
18
19 SUF 9].
7'Plaintiffs'UF
10]. As the County personnel conceded, a
The degraded road is not an inherent risk of cycling
7'ane width is too narrow
[Plaintiffs'UF 14].
[Plaintiff s
The degraded
20 roadway could have been repaired without changing the fundamental nature of recreational
21 bicycling [Plaintiffs'UF 25].
22
23
[Plaintiffs'UFs
The degraded road was in a dangerous condition in the morning of July 28, 2018
15]. The degraded section of road presented a hazard to numerous types of users, not just
24 bicyclists [Plaintiffs'UF 22]. The County's neglect of the dangerous condition constituted a
25 departure from the industry standards of care [Plaintiffs'UF 20]. Repairing the degraded
26 roadway would not have changed the fundamental nature of recreational bicycling [Plaintiffs'UF
27 24]. The degraded roadway was a substantial factor in causing the accident involving Dr. Doherty
28 and Mr. Voyles [Plaintiffs'UF 23]. Thus, the County's Motion fails.
3
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
III. ARGUMENT
A. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY
AD JUDICATION MOTIONS
The first step in analyzing a motion for summary judgment is determining whether the
moving party carried its burden of production by making a prima facie showing that there are no
triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.
Indeed, if a moving party fails to meet its initial burden, whether by mistake or inadequate
evidence, the non-moving party need not make any showing at all to defeat the motion. Consumer
Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Moreover, the moving party'
10 declarations and evidence will be strictly construed in determining whether they negate an essential
element of the opposing party's claim "in order to resolve any evidentiary doubts or ambiguities in
12 plaintiff's favor." Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.
13 If the moving party meets its initial burden, the court's sole function on a motion for
summary judgment becomes issue finding, not issue determination. The judge must conclude,
from the evidence, whether there is a triable issue as to any material fact. CAL. CODE CIv. P.
16 ("CCP") $ 437c(c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926. Summary judgment is a
17 "drastic procedure," which must "be used with caution," not as a substitute for a full trial. Sanchez
18 v. Swinerton dc 8'alberg Co. (1996) 47 Cal.App.4th 1461, 1465. Where, "[a]t its heart, [a] case
19 involves competing, if not necessarily conflicting, evidence that must be weighed by a trier of fact"
20 a summary judgment motion must be denied. Arzate v. Bridge Terminal Transport, Inc. (2011) 192
Cal.App.4th 419, 427. In evaluating a motion for summary judgment, the affidavits of the moving
party are strictly construed and those of the opposing party are liberally construed. Compton v.
City of Santee (1993) 12 Cal. App.4th 591, 596.
24 A party may move for summary adjudication as to "one or more causes of action within an
action... if that party contends that the cause of action has no merit...." CCP ) 437c(f}(1) "A
26 motion for summary adjudication shall be granted only if it completely disposes of a cause of
27 action, an affirmative defense, a claim for damages, or an issue of duty." Id.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
B. PRIMARY ASSUMPTION OF RISK ("PAOR") DOCTRINE IN CALIFORNIA
The PAOR doctrine applies only when, due to the nature of the activity and the relationship
between plaintiff and defendant to that activity, defendant's ordinary duty of care is completely
negated. Knight v. Jewett (1992) 3 Cal.4th 296, 314-315. Courts initially held the PAOR doctrine
could be applied only in cases involving sports that encompass an inherent risk of injury. The
PAOR doctrine is most frequently utilized in sports cases, but it can also be applied in cases
concerning other recreational activities.
Nalwa v.Cedar Fair extended the PAOR doctrine to recreational activities. (2012) 55
Cal.4th 1148, 1152. In determining whether the PAOR doctrine is applicable in cases involving
10 recreational activities, the initial, necessary threshold inquiry is: was the activity "done for
enjoyment or thrill, [did it] require physical exertion as well as elements of skill, and [did it]
12 involve a challenge containing a potential risk of injury." Record v. Reason (1999) 73 Cal.App.4th
472, 482.
14 Even if court determined PAOR could apply, the Nawla court noted, however, that PAOR
15
would still only apply when the activity at issue "involv[ed] an inherent risk of injury to voluntary
16 participants... where the risk cannot be eliminated without altering the fundamental nature of the
17
activity." Jd. at 1156 (emphasis added). Thus, a further, threshold bipartite test was created by the
18 court to determine if PAOR could apply in the specific case. First, it must be shown as a matter of
law that the activity at issue "involve[ed] an inherent risk." Second, it must be shown as a matter
20 of law that the risk "cannot be eliminated without altering the fundamental nature of the activity."
21 As to the latter issue, the inherent risk "must be an integral part of the activity, such that creating a
22 duty to avoid it would fundamentally change the nature of the activity or deter people from
participating." Jd., at 1157-1158; see also Jimenez v. Roseville City School District (2016) 247
24 Cal.App.4'" 594, 608-611 (PAOR doctrine did not apply to student injured from doing flips because
25 flips were not integral part of breakdancing taught at school).
26 If a litigant can establish in a motion for summary judgment that (1) an activity is of the
27 kind for which PAOR may apply, (2) that the activity has an inherent risk, and (3) that the risk
28 could not be removed without altering the fundamental nature of the activity, the inquiry is still not
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
over. If all of those elements are established as a matter of law, the motion still fails if the plaintiff
raises a triable issue as to whether or not defendant's failure to use due care increased the inherent
risks. Knight, 3 Cal.4th at 315-316. Where defendant breached the duty of due care
by increasing the risk inherent in an activity, plaintiff s knowing encounter of the increased risk is
judged under comparative negligence, not PAOR. See, Vine v. Bear Valley Ski Co. (2004) 118
Cal.App.4th 577, 598-600.
Based on all of the above, a very clear flow chart/roadmap of questions for the Court to
consider and answer:
1. Did Defendant establish as a matter of law that solo, recreational bicycle riding falls
10 within the ambit of PAOR (" Question No. 1")? If no, the motion fails and no further inquiry is
needed;
12 2. Did Defendant establish via evidence as a matter of law that a bicyclist encountering
13 degraded, improperly maintained roadways is an "inherent risk" in solo, recreational bicycle riding
(" Question No. 2")? If no, the motion fails and no further inquiry is needed;
15 3. Did Defendant establish via evidence as a matter of law that the risk of encountering
16 degraded, improperly maintained roadways is an "integral" aspect of solo bicycling such that
17 removing that risk would "fundamentally alter" the nature of solo bicycle riding (" Question No.
18 3")? If no, the motion fails and no further inquiry is needed;
19 4. If Questions 1-3 are answered affirmatively, did Plaintiff establish via evidence a
20 triable issue as to whether Defendant "failed to use due care in increasing the inherent risks" of
21 solo, recreational bicycling on roadways (" Question No. 4")? If yes, the motion fails.
22 As will be shown, Defendant fails, legally and factually, on all of these questions and,
23 therefore, the motion must fail.
24 a. NO CALIFORNIA COURT HOLDS THAT THE PAOR DOCTRINE IS
APPLICABLK TO SOLO BICYCLE RIDING AND, INSTEAD, CASES
25 HOLD THAT EXTENDING THK DOCTRINE IN THAT REGARD
WOULD BE IMPROPER (Question No. 1)
26
As discussed, Defendant must establish as a matter of laiv that the activity Dr. Doherty
27
28 engaged in — solo, recreational bicycle riding — is the type of activity for which the PAOR doctrine
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
applies. Initially, there is no case holding as such so what Defendant seeks is for this trial court to
create law, not follow the law. Indeed, the courts that have addressed this issue have held that
extending the PAOR doctrine to solo bicycle riding would be
improper.'nexplicably,
Defendant's motion never mentions or addresses the case almost directly on-
point to the case, here — Childs v. County of Santa Barbara (2004) 115 Cal.App.4'" 64. In that
case, a child rode her scooter on a public sidewalk when she fell over a raised part of the sidewalk,
which the plaintiff alleged was negligently maintained. The public entity defendant moved for
summary judgment pursuant to the PAOR doctrine, which was granted. The appellate court
reversed.
10 Initially, the appellate court held that defendant did not establish as a matter of law that
riding a scooter was a "sport or sports-related recreational activity covered by the assumption of
12 risk doctrine." Childs, 115 Cal.App.4'" at 71. The court held that extending PAOR to riding a
scooter recreationally would not protect sports and sports-related activities. Instead, extending the
14 doctrine might "chill the riding of scooters," the exact opposite goal of the PAOR doctrine.
15 Moreover, the court found it relevant that the child was not riding "with other children in a
16 structured or unstructured contest" or was "attempting any trick" with the scooter. Id.
17 More broadly, the court found that "merely using recreational equipment for pleasure does
18 not trigger the doctrine." Id. Indeed, arguing against an opposite result, the court held:
19 Similarly, it would mean that because a bicycle can be used in a race, riding a
bicycle as a means of transportation is participation in a sport. There are no cases
20 holding that the use of an automobile or bicycle or other equipment is automatically
subject to the assumption of risk doctrine solely because the equipment can be used
21 in a sport or sports-related activity. In all situations, the conduct of the driver or
22 rider may be considered in apportioning fault. But attributing fault to a plaintiffin
23
~
Remarkably, a key opinion on relevant issues in this motion came out on September 28 2020,
8'illiams v. C:ounty of Sonoma, 2020 WL 5757662, concerning a recreational bicyclist wIio was
injured by a pothole, which plaintiff contended was a dangerous condition of public property. That
case only addressed Question No. 4 outlined by Plaintiff herein. Regarding Question Nos. I and 2,
the court merely said it "will assume, without deciding, the answers to [Questions 1 and 2]."
8'illiams, 2020 WL 5757662, at *2 (emphasis added). As will be shown, this case proves fatal to
Defendant's motion with respect to Question No. 4.
27
As will be shown Childs literally addresses all four relevant questions discussed in Section III(B)
28 and so the case will be discussed, mdependently, with respect to each such question in this
Opposition.
7.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
determining recovery is very different from entirely barring recovery. Id., at 71-72
(emphasis added).
As there is no dispute that Dr. Doherty was not in any race at the time and, instead, using
his bicycle for recreation/transportation, pursuant to Childs, PAOR does not apply.
The Childs court went on to address and distinguish two cases cited by Defendant, here,
Moser v. Ratinoff (2003) 105 Cal.App.4'" 1211 and Calhoon v. Lewis (2000) 81 Cal.App.4'" 108.
As the Childs court found, these two cases are inapposite to the facts, here, and in large part support
finding against PAOR in the present case. In Moser, the court "analogized bicycle riding to
automobile driving as a 'means of transportation,'nd suggested that bicycle riding, like
automobile driving, is not automatically covered by the assumption of risk doctrine." Childs, at 72
10
(citing Moser, 105 Cal.App.4" at 1220-21). Moser, very different than the case here, involved an
organized, long-distance ride with a large number of riders, not generally associated "with
12
automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths." Id.
Accordingly, in Moser, when one participant was struck by another participant in the organized
ride the PAOR doctrine applied.
15
Indeed, Moser merely reconfirmed the long-standing holding that injury claims due to being
16
injured by a co-participant in a sporting activity will be barred by PAOR. See, e.g.,Knight, 3
17
Cal.4'" at 316-320 (touch football); Cheong v. Antablin (1997) 16 Cal.4'" 1063, 1066-69 (skiing);
18
Staten v. Sup. Ct. (1996) 45 Cal.App.4'" 1628, 1634 (ice skating). The logical rationale for this
19
holding is that allowing participants in sports to sue co-participants for injury would "chill"
20
participation in those sports. As the evidence establishes, here, Dr. Doherty was not participating
21
in an organized bicycle race at the time, nor injured by someone riding with him in that race, or
22
otherwise. Accordingly, the holding in Moser is inapposite.
23
Calhoon involved a plaintiff injured while trying to perform a "dangerous skateboarding
stunt." Childs, at 72. As the Childs court noted, in contrast, the scooter-riding plaintiff may have
25
fallen due to her carelessness, but there was nothing in the record showing that the plaintiff fell
26
while "attempting to perform a stunt" or while riding her scooter for "thrills and excitement." Id.
This holding was echoed in another skateboarding case, Bertsch v. Mammouth Community 8'ater
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
Dist. (2016) 247 Cal.App.4'" 1201, wherein PAOR was held to apply to a child's injury claims was
where the evidence showed that he the child purposefully went up a hill only so he could go down
at high speed when he was injured — i.e. for thrills.
Here, the evidence establishes, as in Chiids, that Dr. Doherty was riding his bicycle for
exercise/transportation. He was not trying to "attempt a stunt" or do anything out of the ordinary,
as Defendant's expert Doug Shapiro confirms. Also, Mr. Shapiro confirmed that Dr. Doherty was
actually travelling at an extremely low speed — 5 to 6 miles per hour. Indeed, anyone who has ever
rode a bicycle would testify that they do not go up a rather steep incline, as Dr. Doherty was doing
at the time, "for thrills." Simply, Dr. Doherty's situation was almost exactly like the situation in
10 Childs where it was unambiguously held that PAOR does not apply. That is the same finding
required here under the law.
12 Moreover, Mr. Shapiro testified, bicycle riders in California share the same rights and
13 responsibilities as vehicle drivers. There is no doubt that, in California, an automobile driver can
sue a governmental entity for injury caused by poorly maintained roads. See, e.g., Alderson v.
15 Santa Clara County (1954) 124 Cal.App.2d 334 (county can be liable for automobile accident
16 caused by negligent maintenance of the side of the road). Moreover, as Doug Shapiro and
Plaintiffs'xpert Larry Neumann agree, bad roadways such as the one at issue here are an inherent
18 risk to automobile drivers as well. Accordingly, the law is the same as to automobile and bicyclists
alike: neither are precluded as a matter of law from suing governmental entities for negligently
20 maintained roadways causing vehicle accidents.
21 b. CALIFORNIA COURTS HOLD THAT THE COUNTY ALLEGEDLY
MAINTAINING ITS ROADWAY IN A DANGEOROUS CONDITION
CANNOT BE HELD TO BE AN "INHERENT RISK" OF SOLO
BICYCLING (Question No. 2)
23
24 Left out of Defendant's Motion is the fact that courts have held that a property owner
25 (whether public or private) cannot, as a matter of law, fail to use due care to eliminate a dangerous
26 condition of the property and then claim such dangerous condition is an "inherent risk" supporting
27
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464
a PAOR claim." See, e.g., Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4'" 1651, 1656
(where plaintiff knowingly encountered and was injured by a sloped lawn that was part of the
apartment complex he resided, since defendant had a duty to remedy dangerous conditions of its
property, PAOR was not applicable and only comparative negligence was applicable); Morgan v.
Fuji Country USA, Inc. 1995) 34 Cal.App.4'" 127, 134-35 (PAOR precluded due to negligent
design of golf course); Huffman v. City of Poway (2000) 84 Cal.App.4" 975, 992-95 (due to alleged
negligence of maintenance of theater, only comparative negligence, not PAOR defense, available);
Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4'" 184, 193 (alleged negligent design of
jump precluded PAOR); Gordon v. Havasu Palms (2001) 93 Cal.App.4'" 244, 249-51 (negligent
10 design of landing strip precluded PAOR).
Indeed, this precise issue was also raised in Childs. As clearly stated in Childs: "The
12 possibility that any person who rides a scooter, bicycle or other wheeled vehicle might be injured
13 by the negligence of another is insufficient to impliedly excuse others from acting with due care to
avoid accidents." Childs, at 73 (citing Knight, at p. 311 —312; Bush v. Parents 8'ithout Partners
15 (1993) 17 Cal.App.4" 322, 330). Childs goes on to state that a landowner's negligence in
16 maintaining its property is "not a risk (inherent in the sport) that is assumed by a participant." Id.
17 Specifically, the Childs court noted that public entities have a statutory duty to maintain its
18 property free of hazards to all permissive users of its property. In that context, PAOR is
inapplicable and, instead, comparative negligence principles apply.
20 Here, it is undisputed that Defendant owns Cohasset Road and the specific part of the road
21 where the accident occurred, Additionally, Defendant admits its obligation to maintain the
22 roadway at issue. Finally, Plaintiff provides ample evidence to, at a minimum, raise a triable issue
23 as to whether Defendant's negligence — i.e., failing to maintain the roadway leading to a degraded
24 roadway and a narrowed path of travel for vehicles/bicycles — was a substantial factor in causing
25 the harm that befell Dr. Doherty. With that evidence, under the line of cases just cited, Defendant's
26 motion must fail.
27
28
's discussed, the recently-delivered 8'illiams opinion said it would merely assume that the
opposite could be true without actually deciding or discussing the issue.
10.
PLAINTIFF'S OPPOSITION TO DE
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MICHAEL T. SHEPHERD, SBN 58813 LAW OFFICES OF MICHAEL T. SHEPHERD 10/13/2020 1074 EAST AVENUE, SUITE 0 CHICO, CA 95926 Phone: (530) 893-3700 Fax: (530) 893-1579 In Association with LAWRENCE A. PURITZ LAW OFFICES OF LAWRENCE A. PURITZ P.O. Box 935 Chico, CA 95927 Phone: (530) 343-1614 Fax: (530) 343-1629 Attorneys for Plaintiffs, Candice L. Doherty, 10 Lauren G. Isaacson, Erynn Doherty SETH I ROSENBERG 12 EMERGENT LLP 5 Third Street, Suite 1000 13 San Francisco, CA 94103 Phone: (415) 894-9284 14 Fax: (415) 276-8929 15 Attorneys for Plaintiff J. %hippie 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 COUNTY OF BUTTE 18 CANDACE L. DOHERTY, LAUREN G. Case No: 19CV02464 ISAACSON, ERYNN DOHERTY, JENNIFER WHIPPLE, PLAINTIFFS'EMORANDUM OF 20 POINTS 4 AUTHORITIKS IN OPPOSITION TO DEFENDANT 21 Plaintiffs, COUNTY OF BUTTE'S MOTION FOR SUMMARY JUDGMENT 22 vs. Date: November 4, 2020 23 Time: 9: 00AM COUNTY OF BUTTE, JIM RAE VOYLES Dept.: TBA 24 and DOES 1 THROUGH 30, Complaint File: 8/14/2019 25 Defendants. Cross-Complaint Filed: 9/5/20019 26 TRIAL: June 29, 2021 27 AND ALL RELATED CROSS-ACTIONS. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. t9CVo2464 TABLE OF CONTENTS I. INTRODUCTION II. FACTUAL BACKGROUND . III.ARGUMENT A. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY AD JUDICATION MOTIONS B. PRIMARY ASSUMPTION OF RISK ("PAOR") DOCTRINE IN CALIFORNIA a. NO CALIFORNIA COURT HOLDS TI-IAT THE PAOR DOCTRINE IS APPLICABLE TO SOLO BICYCLE RIDING AND, INSTEAD, CASES HOLD THA EXTENDING THE DOCTRINE IN THAT REGARD WOULD BE IMPROPER (Question No. 1) 6 b. CALIFORNIA COURTS HOLD THAT THE COUNTY ALLEGEDLY MAINTIAN- TAINING ITS ROADWAY IN A DANGEROUS CONDITTION CANNOT BE HELD TO BE AN "INHERENT RISK" OF SOLO BICYCLING (Question No.2) c. YOU CAN REMOVE NEGLIGENTLY MAINTAINED ROADWAYS FROM SOLO BICYCLE RIDING WITHOUT CHANGING THE FUNDAMENTAL NATURE OF SOLO BICYCLE RIDING (Question No. 3) . .11 d. PLAINTIFF RAISES A TRIABLE ISSUE AS TO WHETHER DEFENDANT'S CONDUCT INCREASED TE-IE INI-IERENT RISKS DR. DOHERTY FACED (Question No. 4) . 12 e. DR. DOHERTY SIGNING WAIVERS WITH ENTITIES OTHER THAN DEFENDANT AND FOR UNRELATED TIMES/RIDES IS COMPLETELY IRRELVANT AND, IN FACT, CUTS AGAINST DEFENDANT'S ARGUMENT...14 IV. CONCLUSION . 15 24 LAW OFFICES OF MICHAEL T. SHEPHERD PLAINTIFFS'EMORANDUM OF POINTS& AUTHORITIES IN OPPOSITION TO DEFENDANT COUNTY OF BUTTE'S MOTION FOR SUMMARY JUDGMENT TABLE OF AUTHORITIES CASES Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 . Alderson v. Santa Clara County (1954) 124 Cal.App.2d 334 Ar=ate v. Bridge Terminal Tiansport, I77c.(2011) 192 Cal.App.4th 419, 427 . Berlsch v. Mammouih Community Niater Dist. (2016) 247 Cal.App 4" 1201 .8, 9 10 Bianco v.Kearny Moto Park, Inc. (1995) 37 Cal.App 4Ih 184 193 .10 Bush v.Peti ents 1Vithout Partnei.s (1993) 12 17 Cal.App.4" 322, 330 .10 13 Calhoon v. I.eve&is(2000) l4 81 Cal.App 4II'08 Cheong v. Antablin (1997) 16 Cal.4'I'063, 1066-69 CI7ilds v. County of Santa Barbara (2004) 17 115 Cal.App 4II'4 1, 2, 7,9 Childs v.County of Santa Bai barn (2004) 115 Cal.App.4'I'4 at 71 . Childs v.County of Santa Barbai a (2004) 115 Cal.App 4Ih 64 at 72 21 Chikls v.County of Santa Barbara (2004) 115 Cal.App.4" 64 at 73 10 Compton v. City of Sat7lee (1993) 24 12 Cal. App.4th 591, 596 . Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468 Curties v. IIill Top Developers, Inc. (1993) 14 Cal.App 4" 1651, 1656 10 LAW OFFICES OF MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S MSJ I9CV02464 BCSC CASE NO. Got don v.Havasu Palms (2001) 93 Cal.App 4'I'44, 249-51 .10 IItiffinan v.City of'Poway (2000) 84 Cal.App 4'I'75, 992-95 . .10 Jimene~ v. Roseville City School District (2016) 247 Cal.App 4'" 594, 608-611 . Johnson v.American Standard, Inc. (2008) 43 Cal.4th 56, 64. Kahn v.East Side Union High School District (2003) 31 Cal.4'I'90 1005-06 12 Knight v.,Iewetl (1992) 3 Cal.4th 296, 311-312 10 Knighl v.Jewett (1992) 12 3 Cal.4th 296, 314-315 13 Knight v.,Iewetl (1992) 3 Cal.4th 296, 315-316 6,12,14 14 15 Knight v.Jewetl (1992) 3 Cal.4th 296, 316-320 16 Morgan v. Fuji Country USA, Inc. 1995) 17 34 Cal.App.4" 127, 134-35 10 Moser v.Ratinoff" (2003) 105 Cal.App O'I'211 Nalwa v. Cedar Fair (2012) 55 Cal.4th 1148, 1152, 1156, 1157-1158 . 5,11 21 Record v. Reason (1999) 73 Cal.App.4th 472, 482 Sanche= v.Swinerlon k 8'alberg Co. (1996) 24 47 Cal.App.4th 1461, 1465 Staten v. Sup. Ct. (1996) 45 Cal.App.4" 1628, 1634 Sweal v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4'I'301, 1304 14 LAW OFFICES OF MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S MSI 19CV02464 BCSC CASE NO. Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 598-600 Williams v. Counly of Sonoma (2020) WL 5757662 1,2,7, 10, 11, 12 Zavala v. Ance (1997) 58 Cal.App.4th 915, 926 CITATIONS CAL. CoDE Clv. P. j~437c(c) . CAL. CQDE Clv. P. j~437c(f)(1) . 12 13 14 17 19 21 24 OF LAW OFFICES MICHAEL T. SHEPHERD PLAINTIFFS'PPOSITION TO DEFENDANT'S MSI l9CV02464 BCSC CASE NO. I. INTRODUCTION This case concerns the sad and imnecessary passing of a pillar of the Chico community, Dr. William Doherty, and the profound effect it had on his family consisting of a wife and three daughters (collectively, "Plaintiffs" ). Dr. Doherty, an avid bicyclist, was riding his bicycle recreationally on Cohasset Road in Chico, California on July 28, 2018. During an extended uphill climb, he came upon a long stretch of highly degraded roadway on Cohasset Road, which narrowed the lane from approximately 9 feet to around 7 feet wide. Defendant County of Butte (" Defendant" ), who was legally responsible for reasonably maintaining the road, was warned about the dangerousness of this degraded roadway for years internally and by concerned citizens but did 10 nothing in response. Following DMV guidelines, Dr. Doherty continued to travel on the degraded road as far to 12 the right as practical. At the same time, a vehicle driven by Defendant Jim Rae Voyles came upon 13 Dr. Doherty travelling in the same direction. Faced with the dilemma of a narrowed road due to 14 road degradation and a center line you are not supposed to cross, Voyles continued in the lane and 15 attempted to pass Dr. Doherty. However, with the lane now too narrow to accommodate both the 16 vehicle and bicycle, Dr. Doherty was struck by the vehicle and Dr. Doherty soon after died from 17 his injuries. In light of these facts, Plaintiffs brought suit against Defendant Voyles for his 18 negligence and Defendant County of Butte as its degraded roadway was a dangerous condition and 19 a substantial factor — indeed, the main factor — in causing the at-issue accident. 20 Presently, Defendant County of Butte moves for Summary Judgment as to its Primary 21 Assumption of Risk ("PAOR") Affirmative Defense, claiming that accidents and injuries, 22 generally, are an "inherent risk" in recreational cycling, including those from encountering 23 degraded roadway. In refuting this argument, two California opinions, one of which with facts 24 almost identical to those at present, conclusively hold that PAOR has no applicability in this case 25 where a bicyclist is injured due to a governmental entity's failure to properly maintain its property. 26 II'illiams v. County of Sonoma, 2020 WL 5757662 (Copy attached as Exhibit 1 for the convenience 27 of the Court and counsel); Childs v. County of Santa Barbara (2004) 115 Cal.App.4'" 64. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 What collectively these two cases (and many others) hold is that: (1) recreational bicycling would not be an activity that falls within the ambit of PAOR; (2) a bicyclist encountering a dangerous condition of public property is not an "inherent risk" of recreational bicycling; (3) that dangerous conditions of public property are not integral to the sport of bicycling such that they cannot be removed without changing the fundamental nature of recreational bicycling; and (4) a governmental entity that maintains its roadways in a manner dangerous to vehicle traffic, generally, increases the inherent risk to vehicle traffic, including bicyclists, thereby precluding applicability of PAOR. To prevail on its motion, Defendant County of Butte had to establish that all four just- 10 mentioned findings are actually the complete opposite. Not only did Defendant not meet its burden in that regard, there is no legal or factual way it ever could. Notably, Defendant County of Butte 12 did not cite even one similar case holding as it asks this court to do now. Indeed, Defendant failed to even mention, much less distinguish, the almost on-point Childs opinion.'ccordingly, what Defendant County of Butte seeks here is for this trial court to rule counter to standing appellate law 15 and extend the PAOR to not only where it has never gone before, but where other courts have 16 denied it has any applicability. Herein, Plaintiffs present law and evidence establishing that PAOR 17 cannot apply here as a matter of law or, at a minimum, a triable issue is raised on this issue. Thus, 18 the present motion must fail. 19 II. FACTUAL BACKGROUND 20 The subject accident occurred on July 28, 2018 at approximately 10:20 a.m. on 21 Cohasset Road in an area known as "the narrows" [Plaintiffs'UF 1 j.At the top of the narrows, 22 Dr. Doherty encountered a degraded section of road that forced him toward the center line. 23 Unfortunately, Mr. Voyles driving his pickup truck hit Dr. Doherty from the rear [County's SUFs 24 & 25]. The County was aware that Cohasset Road is regularly used by cyclists and even 25 identifies Cohasset Road as a bike route promoting its use for recreational cycling [Plaintiffs'UFs 26 27 28 'n fairness, Defendant County of Butte could not have discussed the Williams case as the opinion was issued after it filed its moving papers. 2. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 4 &, 13]. Furthermore, Cohasset Road qualifies as a primary evacuation route giving it a higher priority in terms of scheduling inspections and maintenance [Plaintiffs'UF 21]. The County had notice of the degraded condition of Cohasset Road and the risk to cyclists [Plaintiffs'UF 2]. As testified by Chris Barris, the County was aware of this area of road regularly needing repair for years. The Cohasset residents for years asked the County to maintain the road so that it would be safe for traffic. As Dr. Shatnawi points out in his Declaration (Ex.17, 5:4-8:2, 11:24-14:13), as early as 2015 the County was aware of the risk due to road degradation in this area. There is no question that the County had notice of the degraded section. Even worse, on April 20, 2018, with specific mileage directions to the exact location of the 10 degraded section from Maggie Krehbiel, a long time and well-known Cohasset resident, Dennis Schmidt, the Public Works Director, and Maureen Kirk, the County Supervisor for the area, drove 12 up Cohasset Road to inspect the road, at least driving past the area. Nevertheless, Mr. Schmidt chose to take no action to repair the degraded section of road [Plaintiffs SUFs 3, 5 & 7]. As Chris Barris points out, had he been told, the patch work could have been done by June 1, 2018 15 [Plaintiffs'UF 8]. The County had actual notice and chose to do nothing, taking no steps to repair or to warn of the degraded, dangerous condition [Plaintiffs'UF 16 & 17]. 17 The road degradation reduced the lane width from approximately 9'o approximately 18 19 SUF 9]. 7'Plaintiffs'UF 10]. As the County personnel conceded, a The degraded road is not an inherent risk of cycling 7'ane width is too narrow [Plaintiffs'UF 14]. [Plaintiff s The degraded 20 roadway could have been repaired without changing the fundamental nature of recreational 21 bicycling [Plaintiffs'UF 25]. 22 23 [Plaintiffs'UFs The degraded road was in a dangerous condition in the morning of July 28, 2018 15]. The degraded section of road presented a hazard to numerous types of users, not just 24 bicyclists [Plaintiffs'UF 22]. The County's neglect of the dangerous condition constituted a 25 departure from the industry standards of care [Plaintiffs'UF 20]. Repairing the degraded 26 roadway would not have changed the fundamental nature of recreational bicycling [Plaintiffs'UF 27 24]. The degraded roadway was a substantial factor in causing the accident involving Dr. Doherty 28 and Mr. Voyles [Plaintiffs'UF 23]. Thus, the County's Motion fails. 3 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 III. ARGUMENT A. LEGAL STANDARDS FOR SUMMARY JUDGMENT AND SUMMARY AD JUDICATION MOTIONS The first step in analyzing a motion for summary judgment is determining whether the moving party carried its burden of production by making a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. Indeed, if a moving party fails to meet its initial burden, whether by mistake or inadequate evidence, the non-moving party need not make any showing at all to defeat the motion. Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468. Moreover, the moving party' 10 declarations and evidence will be strictly construed in determining whether they negate an essential element of the opposing party's claim "in order to resolve any evidentiary doubts or ambiguities in 12 plaintiff's favor." Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64. 13 If the moving party meets its initial burden, the court's sole function on a motion for summary judgment becomes issue finding, not issue determination. The judge must conclude, from the evidence, whether there is a triable issue as to any material fact. CAL. CODE CIv. P. 16 ("CCP") $ 437c(c); Zavala v. Arce (1997) 58 Cal.App.4th 915, 926. Summary judgment is a 17 "drastic procedure," which must "be used with caution," not as a substitute for a full trial. Sanchez 18 v. Swinerton dc 8'alberg Co. (1996) 47 Cal.App.4th 1461, 1465. Where, "[a]t its heart, [a] case 19 involves competing, if not necessarily conflicting, evidence that must be weighed by a trier of fact" 20 a summary judgment motion must be denied. Arzate v. Bridge Terminal Transport, Inc. (2011) 192 Cal.App.4th 419, 427. In evaluating a motion for summary judgment, the affidavits of the moving party are strictly construed and those of the opposing party are liberally construed. Compton v. City of Santee (1993) 12 Cal. App.4th 591, 596. 24 A party may move for summary adjudication as to "one or more causes of action within an action... if that party contends that the cause of action has no merit...." CCP ) 437c(f}(1) "A 26 motion for summary adjudication shall be granted only if it completely disposes of a cause of 27 action, an affirmative defense, a claim for damages, or an issue of duty." Id. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 B. PRIMARY ASSUMPTION OF RISK ("PAOR") DOCTRINE IN CALIFORNIA The PAOR doctrine applies only when, due to the nature of the activity and the relationship between plaintiff and defendant to that activity, defendant's ordinary duty of care is completely negated. Knight v. Jewett (1992) 3 Cal.4th 296, 314-315. Courts initially held the PAOR doctrine could be applied only in cases involving sports that encompass an inherent risk of injury. The PAOR doctrine is most frequently utilized in sports cases, but it can also be applied in cases concerning other recreational activities. Nalwa v.Cedar Fair extended the PAOR doctrine to recreational activities. (2012) 55 Cal.4th 1148, 1152. In determining whether the PAOR doctrine is applicable in cases involving 10 recreational activities, the initial, necessary threshold inquiry is: was the activity "done for enjoyment or thrill, [did it] require physical exertion as well as elements of skill, and [did it] 12 involve a challenge containing a potential risk of injury." Record v. Reason (1999) 73 Cal.App.4th 472, 482. 14 Even if court determined PAOR could apply, the Nawla court noted, however, that PAOR 15 would still only apply when the activity at issue "involv[ed] an inherent risk of injury to voluntary 16 participants... where the risk cannot be eliminated without altering the fundamental nature of the 17 activity." Jd. at 1156 (emphasis added). Thus, a further, threshold bipartite test was created by the 18 court to determine if PAOR could apply in the specific case. First, it must be shown as a matter of law that the activity at issue "involve[ed] an inherent risk." Second, it must be shown as a matter 20 of law that the risk "cannot be eliminated without altering the fundamental nature of the activity." 21 As to the latter issue, the inherent risk "must be an integral part of the activity, such that creating a 22 duty to avoid it would fundamentally change the nature of the activity or deter people from participating." Jd., at 1157-1158; see also Jimenez v. Roseville City School District (2016) 247 24 Cal.App.4'" 594, 608-611 (PAOR doctrine did not apply to student injured from doing flips because 25 flips were not integral part of breakdancing taught at school). 26 If a litigant can establish in a motion for summary judgment that (1) an activity is of the 27 kind for which PAOR may apply, (2) that the activity has an inherent risk, and (3) that the risk 28 could not be removed without altering the fundamental nature of the activity, the inquiry is still not PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 over. If all of those elements are established as a matter of law, the motion still fails if the plaintiff raises a triable issue as to whether or not defendant's failure to use due care increased the inherent risks. Knight, 3 Cal.4th at 315-316. Where defendant breached the duty of due care by increasing the risk inherent in an activity, plaintiff s knowing encounter of the increased risk is judged under comparative negligence, not PAOR. See, Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, 598-600. Based on all of the above, a very clear flow chart/roadmap of questions for the Court to consider and answer: 1. Did Defendant establish as a matter of law that solo, recreational bicycle riding falls 10 within the ambit of PAOR (" Question No. 1")? If no, the motion fails and no further inquiry is needed; 12 2. Did Defendant establish via evidence as a matter of law that a bicyclist encountering 13 degraded, improperly maintained roadways is an "inherent risk" in solo, recreational bicycle riding (" Question No. 2")? If no, the motion fails and no further inquiry is needed; 15 3. Did Defendant establish via evidence as a matter of law that the risk of encountering 16 degraded, improperly maintained roadways is an "integral" aspect of solo bicycling such that 17 removing that risk would "fundamentally alter" the nature of solo bicycle riding (" Question No. 18 3")? If no, the motion fails and no further inquiry is needed; 19 4. If Questions 1-3 are answered affirmatively, did Plaintiff establish via evidence a 20 triable issue as to whether Defendant "failed to use due care in increasing the inherent risks" of 21 solo, recreational bicycling on roadways (" Question No. 4")? If yes, the motion fails. 22 As will be shown, Defendant fails, legally and factually, on all of these questions and, 23 therefore, the motion must fail. 24 a. NO CALIFORNIA COURT HOLDS THAT THE PAOR DOCTRINE IS APPLICABLK TO SOLO BICYCLE RIDING AND, INSTEAD, CASES 25 HOLD THAT EXTENDING THK DOCTRINE IN THAT REGARD WOULD BE IMPROPER (Question No. 1) 26 As discussed, Defendant must establish as a matter of laiv that the activity Dr. Doherty 27 28 engaged in — solo, recreational bicycle riding — is the type of activity for which the PAOR doctrine PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 applies. Initially, there is no case holding as such so what Defendant seeks is for this trial court to create law, not follow the law. Indeed, the courts that have addressed this issue have held that extending the PAOR doctrine to solo bicycle riding would be improper.'nexplicably, Defendant's motion never mentions or addresses the case almost directly on- point to the case, here — Childs v. County of Santa Barbara (2004) 115 Cal.App.4'" 64. In that case, a child rode her scooter on a public sidewalk when she fell over a raised part of the sidewalk, which the plaintiff alleged was negligently maintained. The public entity defendant moved for summary judgment pursuant to the PAOR doctrine, which was granted. The appellate court reversed. 10 Initially, the appellate court held that defendant did not establish as a matter of law that riding a scooter was a "sport or sports-related recreational activity covered by the assumption of 12 risk doctrine." Childs, 115 Cal.App.4'" at 71. The court held that extending PAOR to riding a scooter recreationally would not protect sports and sports-related activities. Instead, extending the 14 doctrine might "chill the riding of scooters," the exact opposite goal of the PAOR doctrine. 15 Moreover, the court found it relevant that the child was not riding "with other children in a 16 structured or unstructured contest" or was "attempting any trick" with the scooter. Id. 17 More broadly, the court found that "merely using recreational equipment for pleasure does 18 not trigger the doctrine." Id. Indeed, arguing against an opposite result, the court held: 19 Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport. There are no cases 20 holding that the use of an automobile or bicycle or other equipment is automatically subject to the assumption of risk doctrine solely because the equipment can be used 21 in a sport or sports-related activity. In all situations, the conduct of the driver or 22 rider may be considered in apportioning fault. But attributing fault to a plaintiffin 23 ~ Remarkably, a key opinion on relevant issues in this motion came out on September 28 2020, 8'illiams v. C:ounty of Sonoma, 2020 WL 5757662, concerning a recreational bicyclist wIio was injured by a pothole, which plaintiff contended was a dangerous condition of public property. That case only addressed Question No. 4 outlined by Plaintiff herein. Regarding Question Nos. I and 2, the court merely said it "will assume, without deciding, the answers to [Questions 1 and 2]." 8'illiams, 2020 WL 5757662, at *2 (emphasis added). As will be shown, this case proves fatal to Defendant's motion with respect to Question No. 4. 27 As will be shown Childs literally addresses all four relevant questions discussed in Section III(B) 28 and so the case will be discussed, mdependently, with respect to each such question in this Opposition. 7. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 determining recovery is very different from entirely barring recovery. Id., at 71-72 (emphasis added). As there is no dispute that Dr. Doherty was not in any race at the time and, instead, using his bicycle for recreation/transportation, pursuant to Childs, PAOR does not apply. The Childs court went on to address and distinguish two cases cited by Defendant, here, Moser v. Ratinoff (2003) 105 Cal.App.4'" 1211 and Calhoon v. Lewis (2000) 81 Cal.App.4'" 108. As the Childs court found, these two cases are inapposite to the facts, here, and in large part support finding against PAOR in the present case. In Moser, the court "analogized bicycle riding to automobile driving as a 'means of transportation,'nd suggested that bicycle riding, like automobile driving, is not automatically covered by the assumption of risk doctrine." Childs, at 72 10 (citing Moser, 105 Cal.App.4" at 1220-21). Moser, very different than the case here, involved an organized, long-distance ride with a large number of riders, not generally associated "with 12 automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths." Id. Accordingly, in Moser, when one participant was struck by another participant in the organized ride the PAOR doctrine applied. 15 Indeed, Moser merely reconfirmed the long-standing holding that injury claims due to being 16 injured by a co-participant in a sporting activity will be barred by PAOR. See, e.g.,Knight, 3 17 Cal.4'" at 316-320 (touch football); Cheong v. Antablin (1997) 16 Cal.4'" 1063, 1066-69 (skiing); 18 Staten v. Sup. Ct. (1996) 45 Cal.App.4'" 1628, 1634 (ice skating). The logical rationale for this 19 holding is that allowing participants in sports to sue co-participants for injury would "chill" 20 participation in those sports. As the evidence establishes, here, Dr. Doherty was not participating 21 in an organized bicycle race at the time, nor injured by someone riding with him in that race, or 22 otherwise. Accordingly, the holding in Moser is inapposite. 23 Calhoon involved a plaintiff injured while trying to perform a "dangerous skateboarding stunt." Childs, at 72. As the Childs court noted, in contrast, the scooter-riding plaintiff may have 25 fallen due to her carelessness, but there was nothing in the record showing that the plaintiff fell 26 while "attempting to perform a stunt" or while riding her scooter for "thrills and excitement." Id. This holding was echoed in another skateboarding case, Bertsch v. Mammouth Community 8'ater 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 Dist. (2016) 247 Cal.App.4'" 1201, wherein PAOR was held to apply to a child's injury claims was where the evidence showed that he the child purposefully went up a hill only so he could go down at high speed when he was injured — i.e. for thrills. Here, the evidence establishes, as in Chiids, that Dr. Doherty was riding his bicycle for exercise/transportation. He was not trying to "attempt a stunt" or do anything out of the ordinary, as Defendant's expert Doug Shapiro confirms. Also, Mr. Shapiro confirmed that Dr. Doherty was actually travelling at an extremely low speed — 5 to 6 miles per hour. Indeed, anyone who has ever rode a bicycle would testify that they do not go up a rather steep incline, as Dr. Doherty was doing at the time, "for thrills." Simply, Dr. Doherty's situation was almost exactly like the situation in 10 Childs where it was unambiguously held that PAOR does not apply. That is the same finding required here under the law. 12 Moreover, Mr. Shapiro testified, bicycle riders in California share the same rights and 13 responsibilities as vehicle drivers. There is no doubt that, in California, an automobile driver can sue a governmental entity for injury caused by poorly maintained roads. See, e.g., Alderson v. 15 Santa Clara County (1954) 124 Cal.App.2d 334 (county can be liable for automobile accident 16 caused by negligent maintenance of the side of the road). Moreover, as Doug Shapiro and Plaintiffs'xpert Larry Neumann agree, bad roadways such as the one at issue here are an inherent 18 risk to automobile drivers as well. Accordingly, the law is the same as to automobile and bicyclists alike: neither are precluded as a matter of law from suing governmental entities for negligently 20 maintained roadways causing vehicle accidents. 21 b. CALIFORNIA COURTS HOLD THAT THE COUNTY ALLEGEDLY MAINTAINING ITS ROADWAY IN A DANGEOROUS CONDITION CANNOT BE HELD TO BE AN "INHERENT RISK" OF SOLO BICYCLING (Question No. 2) 23 24 Left out of Defendant's Motion is the fact that courts have held that a property owner 25 (whether public or private) cannot, as a matter of law, fail to use due care to eliminate a dangerous 26 condition of the property and then claim such dangerous condition is an "inherent risk" supporting 27 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MSJ BCSC Case No. 19CV02464 a PAOR claim." See, e.g., Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4'" 1651, 1656 (where plaintiff knowingly encountered and was injured by a sloped lawn that was part of the apartment complex he resided, since defendant had a duty to remedy dangerous conditions of its property, PAOR was not applicable and only comparative negligence was applicable); Morgan v. Fuji Country USA, Inc. 1995) 34 Cal.App.4'" 127, 134-35 (PAOR precluded due to negligent design of golf course); Huffman v. City of Poway (2000) 84 Cal.App.4" 975, 992-95 (due to alleged negligence of maintenance of theater, only comparative negligence, not PAOR defense, available); Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4'" 184, 193 (alleged negligent design of jump precluded PAOR); Gordon v. Havasu Palms (2001) 93 Cal.App.4'" 244, 249-51 (negligent 10 design of landing strip precluded PAOR). Indeed, this precise issue was also raised in Childs. As clearly stated in Childs: "The 12 possibility that any person who rides a scooter, bicycle or other wheeled vehicle might be injured 13 by the negligence of another is insufficient to impliedly excuse others from acting with due care to avoid accidents." Childs, at 73 (citing Knight, at p. 311 —312; Bush v. Parents 8'ithout Partners 15 (1993) 17 Cal.App.4" 322, 330). Childs goes on to state that a landowner's negligence in 16 maintaining its property is "not a risk (inherent in the sport) that is assumed by a participant." Id. 17 Specifically, the Childs court noted that public entities have a statutory duty to maintain its 18 property free of hazards to all permissive users of its property. In that context, PAOR is inapplicable and, instead, comparative negligence principles apply. 20 Here, it is undisputed that Defendant owns Cohasset Road and the specific part of the road 21 where the accident occurred, Additionally, Defendant admits its obligation to maintain the 22 roadway at issue. Finally, Plaintiff provides ample evidence to, at a minimum, raise a triable issue 23 as to whether Defendant's negligence — i.e., failing to maintain the roadway leading to a degraded 24 roadway and a narrowed path of travel for vehicles/bicycles — was a substantial factor in causing 25 the harm that befell Dr. Doherty. With that evidence, under the line of cases just cited, Defendant's 26 motion must fail. 27 28 's discussed, the recently-delivered 8'illiams opinion said it would merely assume that the opposite could be true without actually deciding or discussing the issue. 10. PLAINTIFF'S OPPOSITION TO DE