Rose v. County of Fresno CA5 ( 2021 )

Filed 12/7/21 Rose v. County of Fresno CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
MELISSA ANN ROSE et al.,
F079483
Plaintiffs and Respondents,
(Super. Ct. No. 17CECG02164)
v.
COUNTY OF FRESNO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Fresno County. Kimberly A.
Gaab, Judge.
McCormick, Barstow, Sheppard, Wayte & Carruth, Todd W. Baxter; Overstreet &
Associates David M. Overstreet and Chester E. Walls for Defendant and Appellant.
Miles, Sears & Eanni, Douglas L. Gordon and Lyndsie N. Russell for Plaintiff and
Respondent Melissa Ann Rose.
Fowler Helsel Vogt and John C. Fowler for Plaintiff and Respondent David Bray.
-ooOoo-
Defendant County of Fresno (County) appeals from a jury verdict in favor of two
bicyclists who fell and were injured in March 2017 when they encountered sand blocking
Auberry Road’s northbound bike lane. County contends (1) the trial court erred in
admitting expert opinion testimony about how long the sand had been in the bike lane
because there was no basis in fact for the opinion; (2) the hazard was obvious as a matter
of law and, therefore, the sand did not meet the statutory definition of a “dangerous
condition”;1 (3) the primary assumption of risk doctrine protects it from liability because
it did not unreasonably increase the risks to plaintiffs beyond those inherent in road
bicycling; and (4) the trial court erred in rejecting its proposed jury instructions setting
forth Vehicle Code provisions applicable to bicyclists.
We conclude the trial court did not abuse its discretion in concluding a registered
environmental health specialist qualified as an expert and in admitting his opinion on
how long the sand had blocked the bike lane. We further conclude the trial court
properly determined the jury should decide (1) whether the sand constituted a dangerous
condition of public property and (2) whether County unreasonably increased the risks
inherent in road bicycling. Lastly, County has not demonstrated the court’s refusal to
give its proposed instructions quoting certain Vehicle Code provisions was prejudicial
error.
We therefore affirm the judgment.
FACTS
County’s Roads and Policies
Fresno County is one of the largest counties in the state, and it has more miles of
road than any other county. County’s Roads Department handles road maintenance,
which includes addressing surface hazards, for approximately 3,500 miles of roadway.
California law requires local governments to adopt a long-term general plan and
requires such plans to include a circulation element. (§§ 65300, 65302, subd. (b).)
Beginning in 2011, the circulation element was required “to plan for a balanced,
1 “ ‘Dangerous condition’ ” is defined by Government Code section 830,
subdivision (a). Unlabeled statutory references are to the Government Code.
2.
multimodal transportation network that meets the needs of all users of streets, roads, and
highways for safe and convenient travel in a manner that is suitable to the rural,
suburban, or urban context of the general plan.” (§ 65302, subd. (b)(2)(A).) The term
“user” includes pedestrians, bicyclists, motorists and others. (§ 65302, subd. (b)(2)(B).)
In accordance with the statutory requirements, the Fresno County General Plan contains a
transportation and circulation element that sets forth County’s policies and objectives for
bicycle use. Section D of that element addresses bicycle facilities and acknowledges the
increased use, acceptance and importance of bicycles as a means of recreation,
transportation and healthful exercise. The element’s policies “seek to provide a safe,
continuous, and easily accessible bikeway system that connects cities to other
communities, to major facilities, and to recreational areas and regional parks [and] strive
to establish bikeways along existing recreational bicycling routes, to encourage safety-
oriented design, to link bikeways to other modes of transportation, and to provide
adequate funding.” Section D contains Policy TR-D.1, which states that “County shall
implement a system of recreational, commuter, and inter-community bicycle routes in
accordance with the Regional Bikeway Plan.” Policy TR-D.7 states: “County shall
construct and maintain bikeways to minimize conflicts between bicyclists and motorists.”
The General Plan’s implementation program includes Program TR-D.C, which
states: “County shall require that sufficient pavement width for bikeways shown on the
Regional Bikeway Plan be constructed in conjunction with road construction projects.”
Program TR-D.D states: “County shall use California Department of Transportation
(Caltrans) bikeway design standards as guidelines for construction of Class I, II, III
bicycle facilities.”
The “Fresno County Regional Bicycle & Recreational Trails Master Plan” was
adopted in September 2013 (Regional Bikeway Plan) by County’s Board of Supervisors,
which certified “its compliance with State law and the October 2000 Fresno County
General Plan.” The Regional Bikeway Plan describes the different classes of bikeways.
3.
Class I bikeways also are known as multiple purpose paths or trails and are shared by
cyclists, pedestrians, and joggers, but not vehicles. Class II bikeways or bicycle lanes are
the class involved in this litigation. They are one-way lanes paired on opposite sides of
the street to facilitate two-way travel. Cyclists travel in their own lane, separated from
traffic by a white stripe six inches wide. Class II bicycle lanes “on paved shoulders are
commonly found on rural roads without curbs and sidewalks. Shoulder bikeways provide
a paved shoulder for the bicyclist to travel outside of the travel lane. The County uses the
minimum width for a typical Shoulder Bicycle Lane per California Highway Design
Manual, CA-MUTCD, and AASHTO standards.” 2
The Regional Bikeway Plan includes Goal BP-D, which states: “Improve
bicycling safety, reduce bicycle-related collisions, establish educational opportunities
aimed at all levels of bicyclists, and promote safer driving behaviors among cyclists and
motorists.” Policy BP-D.1 states: “Provide bikeway maintenance such as pavement
repairs, striping, signage, tree trimming, debris removal, and any other upkeep as
financially feasible.”
The Accident Location
Plaintiffs’ bicycling accident occurred on northbound Auberry Road, about
0.6 miles south of Frontier Road. Auberry Road is a two-lane, paved roadway with
designated bike lanes in each direction and a speed limit of 55 miles per hour. Auberry
Road is commonly used for road bicycling because it is accessible to urban areas, has
bike lanes, and provides access to higher elevation riding. The bike lanes were designed
to be four feet wide, were separated from vehicle traffic by a six-inch white stripe, and
were constructed in 1995. As actually built, the width of the bike lane varies. At the
accident location, the road curves to the right and the width of the bike lane tapers from
2 CA-MUTCD refers to the California Manual on Uniform Traffic Control Devices
and AASHTO refers to the American Association of State Highway and Transportation
Officials.
4.
4.1 feet to 3.6 feet within a 65-foot stretch and then tapers to 2.9 feet. These distances
were measured from the center of the six-inch stripe marking the bike lane to the base of
the sloped asphalt berm that separates the bike lane from the earth and shoulder to the
right of the road. The asphalt berm was approximately four inches high at the accident
location.
County owns an easement that contains Auberry Road and it controls and
maintains the roadway. County allows the general public access and use of the roadway
and bike lanes. County’s Roads Department divides its maintenance operations into
areas. Area 11, where the accident occurred, contains approximately 187 miles of road,
or about five percent of County’s total. Area 11 covers Auberry Road from just south of
the accident location to the mountainous region around Shaver Lake. Conditions in
Area 11 are different from the other areas because it is more mountainous. Area 7, which
is just south of Area 11, is primarily an urban area that also includes farming.
The Bicyclists
On Sunday, March 19, 2017, Darren Cousineau, Kent Johnson and Mark
Updegraff met plaintiff David Bray at his house, intending to ride their bicycles from
Fresno to Bass Lake and back, a distance of approximately 55 miles. The weather was
partly cloudy with no rain. Bray described the conditions as clear and dry. The group of
four rode from Bray’s house to Sherry’s Roadhouse on Auberry Road using bike lanes
without encountering any problems. The roadhouse was commonly used by cyclists as a
destination for shorter rides and as a stopping place on longer rides. Cousineau described
Auberry Road as an artery road that bicyclists use to get to more challenging roads at
higher elevations.
At the roadhouse, Bray immediately recognized plaintiff Melissa Rose and started
a conversation with her and her father, John Moore. Rose knew Bray and the other three,
having ridden with them previously. During the conversation Bray learned Rose and her
father were riding to Prather, the same direction as Bray. They decided to ride together
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as a group. Meanwhile, Cousineau spoke with Tou Pha, another rider headed in the same
direction, and Pha joined the group. The seven riders left the roadhouse, crossed Auberry
Road, and took Auberry Road’s northbound bike lane.
Bray estimated that he had ridden Auberry Road north of the roadhouse more than
30 times before the accident occurred. Rose also was familiar with the area. As part of
her job with the school district, she drove Auberry Road to Foothill Elementary School
and other schools in the area about five to 10 times a year. From December 2016 through
the date of the accident, Rose had not ridden Auberry Road in the area of the accident but
had driven that route.
From the time the group left the roadhouse until they reach the accident site, they
rode in Auberry Road’s bike lane and encountered no hazards or issues. The group rode
in a formation referred to as a paceline, which is common. Riding in a paceline is a
fundamental skill for road bike riders that allows them to ride predictably and safely in a
single file. The first rider sets the pace and blocks some of the wind, allowing following
riders to exert less energy. When the lead rider becomes fatigued, he or she leaves the
line and works their way to the back of the line and the next rider takes the lead and sets
the pace. Typically, the front wheel of a following rider is about one to two wheel
diameters behind the back wheel of the rider ahead. 3 Bicyclists in a paceline are offset,
rather than directly in line behind the rider in from of them. The amount of the offset
varies, but usually is approximately six inches. Offsetting allows the following rider
better visibility of the roadway ahead and can reduce the effects of a crosswind.
The Sand and Accident
As the group approached the accident site, Pha was the lead rider in the paceline.
Pha had ridden in the area the week before the accident. When he got to the area where
the sand was located, Pha gave a signal by pointing with his fingers to where the obstacle
3 The diameter of a wheel is approximately 27 inches.
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was going to be. This signaling technique is used to alert the riders in back that they are
approaching an object they should avoid. Pha testified that he had no problems getting
around the sand.
Cousineau, the second rider in the paceline, was asked if he could recall how far
away he was when he first recognized that the bike lane was blocked with sand. He
answered:
“Well, it happened very quickly. I don’t know that I can give you a
measurement distance-wise. But the reason is because the -- the sandbar
was tapered. So, you know, as we approached it, it’s kind of a very thin
line against the gutter and then gradually and then very quickly filled up the
entire bike lane. So as soon as we recognized there was a problem, there
was a problem. And so it was very quick.”
Cousineau testified that Pha, he and Rose’s father, who was third in line, stayed in
the bike lane until they approached the sand bar, took a quick look back to make sure
there was no traffic, saw it was safe to go around the hazard, and went around it by going
into the traffic lane between six and 12 inches from the bike lane stripe. Cousineau
testified the sand bar created a hazard because it forced “bicyclists to leave the dedicated
bicycle lane and move out into the vehicular traffic lane.” As Cousineau went by the
sand, he pointed with his finger and yelled “sand.” Cousineau stated that approximately
four to five seconds after he moved back into the bike lane, he heard a loud crunching
sound, and the first three riders slowed down, looked back, and saw there had been an
accident with riders down. Cousineau saw Rose lying in the roadway, moaning in pain.
Rose’s father and others assisted Rose out of the roadway over to the shoulder. By the
time Cousineau made his way back to the accident scene, Bray had stood up and was
holding his wrist. Bray had blood on his fingers and asked Cousineau for some Advil.
Rose testified that from the roadhouse to the accident scene she rode in the
paceline behind her father. As the paceline approached the sand, Rose saw cyclists ahead
of her signal with their hands to get over and she immediately started getting over. She
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then saw some of the sand as they were passing it and thought that it was the sand being
referred to. When Rose passed that part of the sand bar, she was inside the bike lane
between the sand and the white stripe. Rose kept going and tried to stay as close to the
white line as she could. She thought she heard someone yell “car” and was not sure
whether she touched some of the sand before or after hearing the warning. When Rose
went into the sand, her bike lost traction, but she initially was able to maintain her
balance. When she came in contact with more sand, Rose lost control and went down,
falling into the roadway and landing on her left side. After Rose fell, she was hit by a
car. Describing the interval between her fall and being hit by the car, Rose stated: “It
happened so fast.” The car pulled off to the side, but then drove away. Cousineau
testified the car was a silver Nissan Sentra, and it pulled onto the shoulder about 180 feet
from the accident scene and came to a complete stop before leaving. The driver of the
car was never identified.
Bray rode in the paceline following Rose, approximately five feet behind her.
When Bray became aware there was sand ahead, he veered to the left like Rose. Bray
testified that “it didn’t look to be any particular hazard at all from a distance. Not until I
got right on top of it did I realize that there was a hazard.” Bray saw Rose’s back wheel
move a little bit side to side and heard her say “whoa.” Bray testified that “we both
moved farther to the left to avoid the sand. And then in a flash she was going down.”
Around that time, Bray heard someone call out “car,” a signal to other cyclists that a car
was coming up from behind. Bray steered to the right into the sand to avoid Rose and the
car, which caused him to lose control and fall. Rose was already on the ground when
Bray was falling. Bray testified his fall happened so fast, he did not “know how [he] got
on [his] feet or out of [his] pedals or any of that.” The next thing he knew, he was
standing holding his hand, which had taken the brunt of the fall.
Johnson was the sixth rider in the paceline, following Bray by two or three bicycle
lengths. The accident happened before Johnson got to the sand. Johnson saw Rose lose
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control, fall into the roadway, and get hit by the car. Johnson got off his bike and walked
up to the accident site.
Updegraff, the last rider, testified he was about 10 to 15 yards behind Johnson and
about 20 to 30 yards behind Rose. Updegraff also stopped before he got to the sand. He
got out his cell phone and called 911. While Updegraff was making that phone call, the
car that hit Rose drove off and Updegraff was unable to get a picture of it.
Post-Accident
Cory Walczak, an officer with the California Highway Patrol (CHP), was notified
by dispatch of a collision involving a bicyclist on Auberry Road. When he arrived at the
scene, a fire truck and another CHP officer, Justice Jones, were there. The ambulance
had already left. The CHP officers conducted an investigation. They spoke to the other
riders, got statements from them, photographed the scene, and took measurements.
Officer Walczak completed a traffic collision report that documented their findings.
Officer Walczak’s testimony about Vehicle Code sections that apply to bicyclists and the
use of bike lanes is described in part IV.B. of this opinion.
During his testimony, Officer Walczak explained a series of photographs showing
the area of the accident and the sand bar in the bike lane. The photographs showed the
bike lane’s white stripe was not covered by sand. They also showed a narrow trench the
officers dug in the sand bar to measure its depth. In some places, the sand in the bike
lane was seven inches deep and covered the four-inch high asphalt berm at the right edge
of the bike lane. The officers also measured the sand bar’s length and width, determining
it was 99 feet long and 4 feet wide at its widest.
Carl Hall, Jr., supervises an Area 7 road crew. He responded to a call from the
sheriff’s dispatcher to clean up the sand in the bicycle lane, even though it was in Area
11. After arriving at the scene, Hall spoke with the CHP officers about what needed to be
done. With Hall using a shovel and the officer following behind with a broom, it took
them approximately 30 minutes to clean the bike lane. Photographs of the area after they
9.
finished showed a dark area in the bike lane where the sand had been moist. The dark
area was surrounded by a lighter color where the sand had been dry. The officer also told
Hall he wanted the entire length of Auberry Road swept the next day to deal with any
other road deposits that might be there.
PROCEEDINGS
In June 2017, Rose filed a complaint against County alleging a dangerous
condition of public property caused the bicycle accident. In August 2017, Bray filed a
complaint against County, also alleging a dangerous condition of public property.
County answered the complaints, asserting multiple affirmative defenses including
reasonable implied assumption of the risk. In November 2017, the trial court
consolidated the two actions based on the parties’ stipulation.
Rose and Bray filed motions for summary adjudication of certain issues. In
November 2018, the trial court denied the motions, concluding there were triable issues
of material fact as to whether County violated section 835 and whether the primary
assumption of risk doctrine applied.
The trial took 13 days, starting on January 23, 2019, and ending on February 20,
2019, when the jury returned its verdict. Plaintiffs’ accident reconstruction expert, Rene
A. Castaneda, evaluated the scene of the accident and estimated Rose’s path in relation to
the sand. Castaneda also collected data from the Garmin unit on Rose’s bicycle and
determined her speed was about 20 miles per hour three seconds before the accident.
Castaneda concluded Rose first entered the sand a second before she fell, was in the sand
for three tenths of a second, exited the first patch, entered the sand a second time, and fell
0.23 seconds later. He stated Rose’s bicycle engaged the sand in such a way that the
friction forces caused an unbalanced condition, resulting in her fall.
Cousineau testified as both a percipient witness and an expert witness about how
and when the sand bar formed in the bike lane. Cousineau’s qualifications as an expert
witness and his opinions about the formation of the sand bar are addressed in part I of this
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opinion. Benjamin Medrano, a road bicycling safety expert retained by plaintiffs,
testified the sand bar “was a dangerous situation” and was much larger than obstacles he
had encountered while bicycling. Medrano testified cyclists could circumvent the sand
bar by leaving the bike lane, “but there was a hazard of traffic.” Medrano had no
criticism of Bray’s decision to steer right into the deeper sand to evade Rose and traffic.
After plaintiffs presented their evidence, County moved for nonsuit. The court
denied the motion, concluding there were disputed issues of fact to be decided by the
jury.
County’s evidence included the testimony of Thomas Braun, a registered engineer
who specializes in accident reconstruction, and Dr. Bong Walsh, an expert in human
factors. Braun stated the sand was an obstruction for bicyclists and it was foreseeable
that a bicyclist running into the sand would lose control. Braun testified that even a little
sand can cause a rider to fall, “[d]epending on speed, steering and braking inputs.” Braun
agreed it would have been reasonable for Rose to stay in the bike lane if she could have
done so safely, but to avoid the sand she needed to be on the white stripe or just into the
northbound traffic lane.
Based on the photographs, Walsh concluded that the sand could be seen “from a
fair distance” and the large surface area of the sand gave fair warning that it was
something that should be avoided. He also stated the fact the asphalt berm on the edge of
the bike lane disappeared into the sand indicated the depth of the sand, providing further
information that a rider should go around the sand. Walsh testified that the entirety of the
bike lane stripe was visible, which indicated a rider would not have to go very far into the
roadway to go around the sand. He acknowledged that contrast is important to visual
perception and stated that from certain distances “it would probably be difficult to tell
whether the sand was touching the line or not.” When asked if he had any criticism of
Rose trying to go around the sand while staying in the bike lane, Walsh responded:
“Well, frankly, yes. I mean, because the sand does cover the bike lane, so – and the
11.
riders in front of her had established a safe line around the sand that was not going far
into the roadway. And so it just seems like if you follow that, then you’re okay.” In
contrast, Walsh stated Bray’s decision to turn into the sand to avoid Rose was reasonable.
Before closing argument, County moved for a directed verdict on the grounds that
the court could determine as a matter of law that there was no dangerous condition and
that liability was barred by immunities and the primary assumption of risk doctrine. The
court denied the motion.
The trial court’s jury instructions defining County’s liability for a dangerous
condition of public property were based on the Judicial Council of California Civil Jury
Instructions (CACI) Nos. 1100 through 1104. Its jury instruction on the primary
assumption of risk doctrine was based on CACI No. 472 and is quoted in part III.B.2. of
this opinion. The special verdict form included 18 questions.
On February 20, 2019, the jury reached its verdict. The jury found County was
75 percent responsible for Rose’s injuries, Rose was 25 percent responsible for her
injuries, and the unknown driver was zero percent responsible. As to Bray’s injuries, the
jury found County was 70 percent responsible and Rose was 30 percent responsible. The
jury determined Rose’s and Bray’s past and future economic and noneconomic damages
totaled $189,007.81 and $209,882, respectively. After adjustments for comparative fault,
County was liable to Rose for $141,755.86 and was liable to Bray for $161,882.
County filed a notice of intent to move for new trial and a notice of motion for
judgment notwithstanding the verdict. In May 2019, the motions were argued before the
trial court. Two weeks after the hearing, the court filed orders denying the motions. In
June 2019, County filed a timely appeal.
12.
DISCUSSION
I. EXPERT TESTIMONY
Plaintiffs’ cause of action alleging a dangerous condition of public property
required them to prove that Auberry Road was in a dangerous condition at the time of the
injury and that County “had notice of the dangerous condition for a long enough time to
have protected against it.” (CACI No. 1100.) Addressing how long the County had
notice of the dangerous condition, Cousineau testified that, in his opinion, the sand bar
had been in place since February 20, 2017, which was 27 days before the accident.
Explaining this date, he stated that the last significant rainfall in the area occurred on
February 20, 2017.
On the question of how the sand bar formed, Cousineau testified that, in his
opinion, the sand bar formed through the process of erosion during the months of
December through February. Cousineau described erosion as a geological process where
precipitation, flowing water and wind causes erodible material such as sediment and sand
to move from one location to another.
County argues the admission of Cousineau’s expert testimony constitutes
reversible error because there was no basis in fact for his opinion about how and when
the sand bar formed in the bike lane. County refers to the principle that an “ ‘expert
opinion is worth no more than the reasons upon which it rests’ ” (Jennings v. Palomar
Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 (Jennings)) and
asserts Cousineau’s opinions were purely conclusory because they were unaccompanied
by a reasoned explanation connecting the factual predicates with the ultimate conclusion.
We disagree.
A. Legal Principles
“A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
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which his testimony relates.” (Evid. Code, § 720, subd. (a).) Such expert witnesses may
present opinions that are “[r]elated to a subject that is sufficiently beyond common
experience that the opinion of an expert would assist the trier of fact” and are based on
matter “that is of a type that reasonably may be relied upon by an expert in forming an
opinion upon the subject to which his testimony relates.” (Evid. Code, § 801.)
“The trial court’s preliminary determination whether the expert opinion is founded
on sound logic is not a decision on its persuasiveness. The court must not weigh an
opinion’s probative value or substitute its own opinion for the expert’s opinion. Rather,
the court must simply determine whether the matter relied on can provide a reasonable
basis for the opinion or whether that opinion is based on a leap of logic or conjecture.”
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772
(Sargon).) “In short, the gatekeeper’s role ‘is to make certain that an expert, whether
basing testimony upon professional studies or personal experience, employs in the
courtroom the same level of intellectual rigor that characterizes the practice of an expert
in the relevant field.’ ” (Ibid.)
Whether a witness qualifies as an expert in a particular field is addressed “to the
sound discretion of the trial court.” (Brown v. Colm (1974) 11 Cal.3d 639, 647.) Some
decisions describe this discretion as “broad.” (E.g., People v. McDowell (2012) 54
Cal.4th 395, 426; Antelope Valley Groundwater Cases (2020) 59 Cal.App.5th 241, 262.)
Thus, appellate courts apply the abuse of discretion standard when reviewing a trial
court’s determination that a witness was qualified to present expert testimony. (Brown v.
Colm, at p. 647 [exclusion of plaintiff’s sole expert was a prejudicial abuse of discretion];
see Sargon, supra, 55 Cal.4th at p. 773.)
B. Cousineau’s Qualifications
Cousineau graduated from Clovis West High School in 1988 and graduated from
California State University, Fresno in 1993 with a degree in environmental health
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science, with an emphasis in occupational health. Later, he obtained a master’s degree in
public health, with an emphasis in environmental health science, from California State
University, Fresno. Cousineau is registered by the California Department of Public
Health as an environmental health specialist.
After Cousineau obtained his undergraduate degree, he worked for the Fresno
Metropolitan Flood Control District as an environmental resources technician for a few
years and was promoted to a staff analyst position. He implemented provisions of the
Clean Water Act (33 U.S.C. § 1251 et seq.) that require “municipalities, construction
sites, and Caltrans to adhere to certain rules and regulations pertaining to storm water
runoff from their properties.” His work involved rainwater runoff along roadways and
included “[h]ow water moves, how it is conveyed, where it is transported to,” and the
results of water movement.
After seven years with the Fresno Metropolitan Flood Control District, Cousineau
worked five years for the California Department of Transportation (Caltrans) as the
District 6 (Fresno area) storm water coordinator. In that capacity, he was responsible for
developing specifications and plans for Caltrans construction sites, ensuring the
specifications and plans were adhered to during construction, and ensuring they also were
adhered to after construction (Caltrans calls postconstruction the maintenance period).
Construction sites have disturbed soil, which is highly erodible and can be transported by
rainfall into water bodies. The purpose of the federal legislation is to prevent that from
occurring by ensuring construction sites implement effective erosion control and
sediment migration practices.
Cousineau also took training courses related to construction site erosion control,
coast construction site erosion, and roadway maintenance. The courses were given by the
International Road Federation, Caltrans’ headquarters, and Caltrans department of storm
water management. Cousineau testified that these courses taught him part of what he
knows about erosion.
15.
After his time at Caltrans, Cousineau went to work for the State Center
Community College District. When he testified, Cousineau was the director of
environmental health and risk management for the district and had 24 and a half years of
experience.
Here we consider the question of whether Cousineau’s testimony was sufficient to
establish he was qualified as an expert on the subject of erosion, erosion control, and
sedimentation. (Evid. Code, § 720, subd. (a).) To qualify as an expert, the witness must
be shown to have “special knowledge, skill, experience, training, or education” about the
subject on which expert testimony is offered. (Ibid.) The expertise of a witness is
relative to the subject and is not subject to rigid classification based on formal education
or certification. (ABM Industries Overtime Cases (2017) 19 Cal.App.5th 277, 294.)
Thus, “no hard and fast rule can be laid down” for determining whether a witness has
special knowledge, skill, experience, training, or education in the field such that his or her
testimony would be likely to assist the jury in the search for the truth. (Brown v. Colm,
supra, 11 Cal.3d at p. 645.) Consequently, whether a witness is qualified to testify as an
expert must be judged on the facts of that particular case. (Ibid.)
We conclude Cousineau’s own testimony provided an adequate basis for the trial
court to determine he had special knowledge, experience, and training related to the
subject of erosion, erosion control, and sedimentation. (See Evid. Code, § 720,
subds. (a), (b).) Thus, the trial court did not abuse its discretion in concluding Cousineau
qualified to testify as an expert about how the sand bar was formed through the process of
erosion and the timing of its formation.
C. Factual Basis for the Opinion
Next, we consider whether Cousineau’s opinions were purely conclusory or,
alternatively, were accompanied by a reasoned explanation of connecting the factual
predicates with his ultimate conclusions about how and when the sand bar formed.
16.
Cousineau testified that the materials he reviewed in forming his opinions included
(1) the deposition testimony of plaintiffs, David Bookwalter, Rick Dowell, 4 Carl Hall,
Kent Johnson, Justice Jones, Tou Pha, Mark Updegraff, and Cory Walczak; (2) his
deposition testimony; (3) weather data for the Fresno Air Terminal from the National
Weather Service for the months of February through March 2017; (4) weather data from
the National Oceanic and Atmospheric Association (NOAA) from the Auberry weather
station for the months of October 2016 through April 2017; (5) the traffic collision report
prepared by the CHP; (6) photographs from the accident scene; and (7) data from his
bicycle’s computer.
County contends these materials provide no evidentiary support for Cousineau’s
opinions and, “therefore, his conclusions and opinions are based on nothing but
speculation.” In particular, County states “Cousineau had not done any calculations,
reviewed no plans of the roadway, performed no studies, and took no samples.” County
notes that Cousineau is not an engineer, never did any engineering calculations for his
estimates, never determined how long the drainage area was, and did not know the
volume of water that would be necessary to move the material into position.
First, County correctly notes that Cousineau was not an engineer. This fact,
however, goes to his qualification as an expert and not the factual predicates for his
opinion. We have already concluded that the trial court did not abuse its discretion in
determining Cousineau qualified as an expert. (See pt. I.B., ante.) In other words, the
fact Cousineau was not an engineer does not establish his opinions were “unaccompanied
by a reasoned explanation connecting the factual predicates to the ultimate conclusion.”
(Jennings, supra, 114 Cal.App.4th at p. 1117.)
4 Bookwalter was the road maintenance supervisor for Area 11. Dowell was the fire
captain in charge of the fire crew at the accident scene.
17.
Second, County’s argument about the lack of engineering calculations and the fact
Cousineau performed no studies and took no samples implies these are necessary factual
predicates for an opinion about how and when the sand bar formed. County has cited,
and we have located, no authority for the principle that an opinion about erosion and
sediment is reasonably explained only when supported by engineering calculations,
studies or soil samples. Consequently, this argument does not establish that Cousineau’s
opinions were unaccompanied by a reasoned explanation connecting the factual
predicates to his ultimate conclusion. (Jennings, supra, 114 Cal.App.4th at p. 1117.)
Lastly, we look at Cousineau’s explanation for his opinion and determine whether
his opinions were conclusory or, alternatively, were supported by the evidence. The
evidence relied upon by Cousineau included his personal observations of the area on the
day of the accident and his review of the CHP photographs. The photographs showed the
type of soil and vegetation on the shoulder of Auberry Road next to the bike lane and the
ground that slopes upward from the shoulder. That soil was higher than the bicycle lane,
which is demonstrated by the photographs and is supported by the testimony that the
four-inch asphalt berm separating the bike lane from the shoulder was covered by the
sand bar. The photographs also demonstrate that the material forming the sand bar was
wet. After Hall and the CHP officer removed the sand bar from the bike lane, the
photograph clearly shows the area where the sand bar was widest was a darker color,
indicating the sand was moist in that area, which supports the inference that the sand was
moved there by water. As for the timing of the formation of the sand bar, Cousineau
explained this conclusion by referring to rainfall data for the Fresno airport and Auberry
weather station for the time preceding the accident.
We conclude Cousineau’s opinions about how and when the sand bar formed in
the bike lane were not “purely conclusory” as that term was used in Jennings, supra,
114 Cal.App.4th at page 1117. In other words, his opinions did not “rest on guess,
surmise or conjecture.” (Ibid.) Instead, Cousineau provided a reasoned explanation of
18.
the factual basis for his opinions, which allowed the jury to evaluate the merits of his
opinions. As a result, the jury was informed how the facts, including the amount and
timing of rainfall in the area, could support his conclusions. Thus, the jury was equipped
to “decide whether it [was] more probable than not that the facts do support the
conclusion urged by [Cousineau].” (Ibid.)
Consequently, we conclude the trial court properly determined “the matter relied
on can provide a reasonable basis for [Cousineau’s] opinion.” (Sargon, supra, 55 Cal.4th
at p. 772.) Therefore, the court did not abuse its discretion when it admitted Cousineau’s
opinion testimony.
II. DANGEROUS CONDITION OF PUBLIC PROPERTY
A. General Legal Principles
The Government Claims Act (§ 810 et seq.) is a comprehensive statute that defines
the liabilities and immunities of public entities and public employees for torts. (Cordova
v. City of Los Angeles (2015) 61 Cal.4th 1099, 1104–1105.) One type of liability is for
injuries caused by a dangerous condition of public property.
Section 835 sets forth the exclusive conditions under which a public entity is liable
for injuries caused by a dangerous condition of public property. It provides in relevant
part: “Except as provided by statute, a public entity is liable for injury caused by a
dangerous condition of its property if the plaintiff establishes [1] that the property was in
a dangerous condition at the time of the injury, [2] that the injury was proximately caused
by the dangerous condition, [3] that the dangerous condition created a reasonably
foreseeable risk of the kind of injury which was incurred, and that [4] … [¶] … [¶] [t]he
public entity had actual or constructive notice of the dangerous condition under Section
835.2 a sufficient time prior to the injury to have taken measures to protect against the
dangerous condition.” (§ 835, italics added.) The italicized terms are defined by statute.
19.
“ ‘Protect against’ includes repairing, remedying or correcting a dangerous
condition, providing safeguards against a dangerous condition, or warning of a dangerous
condition.” (§ 830, subd. (b).) “ ‘Dangerous condition’ means a condition of property
that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of
injury when such property or adjacent property is used with due care in a manner in
which it is reasonably foreseeable that it will be used.” (Id., subd. (a).) Conversely, “[a]
condition is not a dangerous condition within the meaning of this chapter if the trial or
appellate court, viewing the evidence most favorably to the plaintiff, determines as a
matter of law that the risk created by the condition was of such a minor, trivial or
insignificant nature in view of the surrounding circumstances that no reasonable person
would conclude that the condition created a substantial risk of injury when such property
or adjacent property was used with due care in a manner in which it was reasonably
foreseeable that it would be used.” (§ 830.2.) For example, the state’s failure to erect
median barriers to prevent cross-median accidents might constitute a dangerous condition
that results in liability. (Cornette v. Department of Transportation (2001) 26 Cal.4th 63,
68.)
The purpose of section 835 and the related provisions is “to impose liability only
when there is a substantial danger which is not apparent to those using the property in a
reasonably foreseeable manner with due care.” (Fredette v. City of Long Beach (1986)
187 Cal.App.3d 122, 131 (Fredette).) Thus, while “it is foreseeable that persons may use
public property without due care, a public entity may not be held liable for failing to take
precautions to protect such persons.” (Id. at p. 132.)
In addition, “[r]easonably foreseeable use with due care, as an element in defining
whether property is in a dangerous condition, refers to use by the public generally, not the
contributory negligence of the particular plaintiff.” (Mathews v. City of Cerritos (1992)
2 Cal.App.4th 1380, 1384 (Mathews).) A particular plaintiff’s contributory negligence is
20.
a matter of defense and has no bearing on whether a dangerous condition existed in the
first instance. (Ibid.; Fredette, supra, 187 Cal.App.3d at p. 131.)
Generally, whether a given set of circumstances constitutes a dangerous condition
poses a question of fact. (Biscotti v. Yuba City Unified School Dist. (2007) 158
Cal.App.4th 554, 558 (Biscotti).) However, the issue may be decided as a matter of law
if no reasonable person could conclude the property’s condition is dangerous under the
statutory definition. (Id. at p. 559.) The plaintiff has the burden of proving a dangerous
condition existed. (Ibid.)
Several judicial decisions have concluded that an apparent hazard was not a
dangerous condition for purposes of section 835. In Fredette, the plaintiff was seriously
injured when he dove off a pier into a shallow lagoon. The appellate court affirmed the
jury’s verdict in favor of the defendant city because the danger of diving from the pier
was apparent, and “no reasonable person could conclude that a swimmer, exercising due
care and confronted with the notice that the condition itself provided, would have used
the pier as a diving platform.” (Fredette, supra, 187 Cal.App.3d at p. 132.)
In Schonfeldt v. State of California (1998) 61 Cal.App.4th 1462, the appellate
court upheld a judgment on the pleadings in favor of the defendant state. The injured
teenager, who was struck by a truck after climbing a freeway fence and running across
the freeway, used the freeway “without due care in a manner which is not reasonably
foreseeable.” (Id. at p. 1464.)
In Mathews, a child tried to ride his bike down a steep and slippery hill in a public
park and crashed into a block wall. The court upheld summary judgment for the city
because “the danger of riding a bicycle down a very steep, wet, grassy hill is obvious
from the appearance of the property itself, even to children exercising a lower standard of
due care.” (Mathews, supra, 2 Cal.App.4th at p. 1385.)
In Biscotti, a nine-year-old boy used a chain link fence to prop his bicycle against
and then stood on the bicycle to pick oranges. (Biscotti, supra, 158 Cal.App.4th at
21.
p. 557.) The bicycle slipped when the boy was leaning over the fence; he fell onto the
fence and was cut. (Ibid.) The trial court granted summary judgment to the defendant
school district. (Id. at p. 556.) The appellate court affirmed the summary judgment
because the boy did not use the fence with due care in a reasonably foreseeable manner.
(Id. at p. 557.) Not only was use of the fence in that manner not reasonably foreseeable,
any reasonable person using the fence as a prop would have appreciated the readily
apparent danger. (Id. at pp. 560–561.)
B. Reasonably Foreseeable Use with Due Care
1. Contentions
County’s motions for directed verdict and for judgment notwithstanding the
verdict contended that, as a matter of law, there was no dangerous condition as that term
is defined in section 830 because the evidence was undisputed as to the obviousness of
the hazard. More specifically, County argues that “the evidence clearly establishes that
no reasonable person would consider that the sand posed a substantial risk of injury when
the property is used with due care in a reasonabl[y] foreseeable manner.” In County’s
view, riding through an obvious sand obstruction does not constitute an exercise of due
care.
Plaintiffs contend the issue of whether the sand bar in the bike lane created a
dangerous condition cannot be resolved as a matter of law because there was evidence
that it posed a substantial risk of harm to reasonably foreseeable users exercising due
care. Plaintiffs refer to the testimony of County employees and the testimony of the other
cyclists who were riding in the paceline.
In reply, “County asserts that the evidence presented clearly establishes that no
reasonable person would consider that the sand posed a substantial risk of injury when
the property is used with due care in a reasonabl[y] foreseeable manner as a matter of
law.” County argues the evidence referred to by plaintiffs go to comparative negligence
22.
and there is only one reasonable conclusion—namely, that the sand was an obvious
danger and a cyclist using reasonable care would not ride through it. In County’s view, a
reasonable cyclist exercising due care would navigate around the sand or stop.
2. Reasonably Foreseeable Users
Initially, we consider who are the reasonably foreseeable users of the bike lane on
Auberry Road. (See § 830, subd. (a) [definition of dangerous condition].) We undertake
this inquiry because “[r]easonably foreseeable use with due care … refers to use by the
public generally.” (Mathews, supra, 2 Cal.App.4th at p. 1384; see Fredette, supra,
187 Cal.App.3d at p. 132 [court considered whether there was a “substantial risk of injury
to any foreseeable user of the property exercising due care”].)
The evidence of foreseeable use by the public generally includes Section D of the
transportation and circulation element of the Fresno County General Plan. That section
recognizes bicycles are “a means of recreation, transportation, and healthful exercise.”
The stated goal of Section D is to “provide a safe, continuous, and easily accessible
bikeway system that facilitates the use of the bicycle as a viable alternative transportation
mode and as a form of recreation and exercise.” Based on these provisions and the goals
and policies of the Regional Bikeway Plan quoted earlier, we conclude the reasonably
foreseeable users of the bike lane include (1) cyclists using it for transportation purposes
and (2) cyclists engaging in recreation, exercise, or a combination of the two. As to the
latter category, the testimony establishes that riding in a paceline is common. Therefore,
we conclude it was reasonably foreseeable that cyclists using the bike lane would include
groups of people riding in a paceline.
Another aspect of using the bike lane in a manner that “is reasonably foreseeable”
(§ 830, subd. (a)) involves the weather and the time of day when the cycling is done.
County asserts “weather was not an issue in seeing the sand in the bike lane as it was
daylight, the weather was partly cloudy and the surface of the road was dry.” County’s
23.
assertion, coupled with its failure to address other conditions, implies that these are the
only conditions in which use of the bike lane is reasonably foreseeable, done with due
care, or both. We reject this implication. First, the testimony shows that recreational
night riding occurs. Second, it is reasonable to infer from the evidence that some cyclists,
particularly commuters, will not always have clear, dry conditions in full daylight every
time they use the bike lane.
Accordingly, we conclude it was reasonably foreseeable that members of the
general public would use the bike lane in a variety of conditions. Some of those varying
conditions would affect the visibility of the sand bar and, thus, the point at which a rider
exercising due care would be able to determine the need to leave the bike lane to avoid
the sand. In reaching these conclusions, we have adhered to the statutory directive that
appellate courts “view[] the evidence most favorably to the plaintiff” when determining
whether the risk to foreseeable users created by the condition was minor, trivial or
insignificant as a matter of law. (§ 830.2.)
3. Risk of Use with Due Care
County’s argument about use with due care asserts that a cyclist approaching the
sand bar has two reasonable courses of action—either stopping or navigating around the
sand by entering the roadway. County supports this argument by referring to the cyclists
in the paceline who successfully chose one of these options, rather than the broader
category of any reasonably foreseeable user.
The option of leaving the bike lane and merging into the roadway and the risks
associated with that option were addressed in the testimony. Cousineau stated that the
purpose of a bike lane is to separate bicycle traffic from motor vehicle traffic and, when a
bike lane is blocked, cyclists are forced into the roadway and the two types of traffic are
commingled. Medrano testified the sand bar “was a dangerous situation” that cyclists
could circumvent by leaving the bike lane, “but there was a hazard of traffic.”
24.
In general terms, a hazard that blocks a bike lane increases the risk of injury to
bicyclists because merging into the roadway involves intermingling with motor vehicles
traveling at a much greater speed than the bicyclists. The longer the blockage, the longer
traffic is intermingled, and the longer bicyclists are subject to the risk that intermingling
creates. Also, the risk of intermingling may be greater where the particular Class II bike
lane is clearly marked and has been in use for two decades. In such a situation, both
drivers and bicyclists expect to be separated and may act in a way that relies on that
separation. Thus, a trier of fact evaluating the risks of the bike lane blockage could
reasonably find that drivers of vehicles are less likely to anticipate having to safely
intermingle with bicycle traffic than drivers on roads without a bike lane. 5
With this background about the general use of bike lanes and the risks associated
with blocking a bike lane, we turn to the sand bar that blocked the bike lane on Auberry
Road. In Fredette, the court considered whether “the configuration of the lagoon at the
time of the accident posed a substantial risk of injury to any foreseeable user of the
property exercising due care.” (Fredette, supra, 187 Cal.App.3d at p. 132.) Here, we
consider whether the configuration of the roadway, bike lane, and sand bar at the time of
the accident posed a substantial risk of injury to any foreseeable user of the property
exercising due care. This evaluation addresses whether the dangers “were apparent to all
users.” (Ibid.)
The roadway, bike lane and sand bar are shown in the CHP photographs admitted
into evidence. Photographs taken from the direction of bicyclists approaching the sand
5 In Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, the appellate
court affirmed a judgment of dismissal entered after a demurrer was sustained to the
bicyclist’s claim that an intersection was dangerous. The court stated: “Many of the
streets and highways of this state are heavily used by motorists and bicyclists alike.
However, the heavy use of any given paved road alone does not invoke the application of
Government Code section 835.” (Id. at p. 7, italics added.) In this case, plaintiffs do not
claim that heavy, intermingled use of the roadway, by itself, constituted a dangerous
condition.
25.
bar show the width of the sand gradually increasing and, thus, narrowing the portion of
the bike lane useable by cyclists. The photographs also show that the white stripe
marking the bike lane is fully visible—that is, it is not covered by sand. Had the white
stripe been covered, approaching riders could have easily seen they had to move into the
traffic lane because they could not ride between the white line and the sand.
Cousineau testified that the sand bar was tapered—that is, it was “a very thin line
against the gutter and then gradually and then very quickly filled up the entire bike lane.”
Cousineau was asked:
“Did it appear to you as you approached the sandpile, before the moment
you’re describing where you realized that the sand tapered all the way out
to the white stripe, where you were under the impression you might be able
to safely navigate around it staying within the bike lane?”
Cousineau answered that he first thought it would be fine, but very quickly the
entire bike lane was filled with sand and it was not an insignificant depth. Cousineau
then recognized that it was an immediate hazard—that is, something his road bike could
not traverse safely—and that is when he decided to move around it.
Based on the photographs and testimony, a trier of fact could reasonably find that
a cyclist in the middle of a paceline approaching the sand with due care would not be
given a clear indication that it was necessary to leave the bike line to avoid the sand until
the rider was very close to the widest part of the sand bar. Similarly, a trier of fact could
reasonably find that a motorist overtaking a paceline with due care would have his or her
vision of the sand bar obstructed by the paceline and would not be able see that the
cyclists would be squeezed into merging into the roadway until they made that maneuver.
Based on the surrounding circumstances, we cannot conclude as a matter of law
that the risk created by the sand bar for bicyclists, which includes the unexpected
intermingling of traffic, was trivial or insignificant when the roadway and bike line were
used with due care by motorists and bicyclists. We recognize the random nature of the
risk created by the bicyclist being forced to merge into the roadway. Not every paceline
26.
would reach the widest part of the sand bar when being overtaken by a motorist and
fewer would be overtaken when there also is a vehicle in the southbound lane of traffic,
which prevent the vehicle overtaking the paceline from moving across the centerline to
give the bicyclists more room. The randomness of these events does not render the risk
unforeseeable as a matter of law. Therefore, we conclude the trial court properly
determined the issue presented a question of fact for the jury to decide. (See § 830.2.)
In closing our analysis, we note part of County’s argument about the obviousness
of the hazard created by the sand bar is premised on the assertion that a reasonable road
bicyclist needs to “avoid any amount of sand on the roadway.” We cannot accept the
premise that any amount of sand is an obvious hazard because the record contains
evidence that bicyclists can ride over some amounts of sand without unreasonably
increasing the risk of a fall. For example, Medrano testified that he had encountered
shovel fulls of sand that are short and “if you ride through them, you’re okay.” Also,
Cousineau testified that “small amounts as shallow as half an inch or so could cause you
to lose control of your bicycle if it’s in the roadway.” His testimony supports the
inference that sand less than half an inch deep is unlikely to cause a loss of control.
Braun, County’s expert, did not give an unqualified opinion a little sand can cause a rider
to fall. Instead, he stated it depended “on speed, steering and braking inputs.” Because
of the conflicting evidence about whether a bicyclist could not perceive the depth of the
sand near the bike lane’s stripe until they were close to it, it was not obvious, as a matter
of law, to all reasonably foreseeable users exercising due care that they could not ride
along the edge of the sand just inside the bike lane’s white stripe.
III. PRIMARY ASSUMPTION OF RISK
A. The Duty of Care Element
Under California tort law, the elements of a negligence claim and a premises
liability claim are the same: a legal duty of care, breach of that duty, and an injury
27.
proximately caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132,
1158.) California’s doctrine of primary assumption of risk addresses the duty of care
element—specifically, it limits the duty owed by the defendant to prospective plaintiffs.
(Williams v. County of Sonoma (2020) 55 Cal.App.5th 125, 128 (Williams).) In the
sporting context, the doctrine precludes liability for injuries arising from those risks
deemed inherent in a sport. (Id. at p. 129.) Thus, as a general rule, a person or entity has
no legal duty to eliminate a sport’s inherent risks or otherwise protect a sports participant
from those risks. (Ibid.) Nonetheless, California law recognizes a limited duty to sports
participants—namely, a duty “ ‘not to unreasonably increase the risks of injury beyond
those inherent in the activity.’ ” (Ibid., quoting Nalwa v. Cedar Fair, L.P. (2012)
55 Cal.4th 1148, 1162 (Nalwa).)
The doctrine reflects a policy determination that certain defendants should not be
responsible for protecting potential plaintiffs from particular harms. (Williams, supra,
55 Cal.App.5th at pp. 128–129.) The public policy for applying the primary assumption
of risk doctrine in the sporting context is “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.” (Nalwa, supra, 55 Cal.4th at p. 1156.)
B. Trial Court Proceedings
1. Motions
County’s motion for nonsuit argued County had no duty to protect plaintiff from
the risks inherent in road cycling in a paceline where the risk cannot be eliminated
without altering the fundamental nature of the activity and, therefore, the issue presented
was “whether [County’s] conduct substantially or unreasonably increased the inherent
risk of the activity.” In arguing the motion, County recognized that whether its conduct
increased the risks inherent in the activity was a factual question and argued that “when
the facts are not in dispute and no reasonable juror could find otherwise, a nonsuit is
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appropriate.” The trial court determined the application of the primary assumption of risk
doctrine to the facts of this case presented questions of fact for the jury. As a result, the
court denied County’s motion for nonsuit.
County’s motion for directed verdict again raised the primary assumption of risk
issue. The trial court stated: “Primary assumption of the risk applies in this case.
However, there are disputed facts on whether or not the County has increased that risk,
the inherent risk.” Defense counsel then asked what facts were in dispute because there
was no dispute that there was sand in the bike lane. The court agreed it was undisputed
that sand was in the bike lane, “but there is dispute about the nature of the sand, the
amount of sand” and whether it was beyond what is an inherent risk in bicycling.
Defense counsel argued hazards are on the roadway every time a cyclist rides a bike,
those objects are avoided all the time, and every object exposes cyclists to the risk of
falling, and “[s]ize doesn’t increase the risk. The risk was there.” Rose’s counsel argued
the size of the sand bar does change the amount of risk and there was “no good argument
that a sand pile that’s this deep and this large is an inherent risk of riding your bicycle on
the roadway.” After hearing argument, the court restated its conclusion that whether the
inherent risk was increased presented a question of fact for the jury.
2. Jury Instructions and Findings
Based on CACI No. 472, the trial court instructed the jury on the primary
assumption of risk doctrine as follows:
“Melissa Rose and David Bray claim that they were harmed while
participating in road bicycling on a roadway controlled and maintained by
the County of Fresno. To establish this claim, Melissa Rose and David
Bray must prove all of the following:
“One, that the County of Fresno controlled and maintained the
roadway;
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“Two, that the County of Fresno unreasonably increased the risks to
Melissa Rose and David Bray over and above those inherent in road
bicycling;
“Three, that Melissa Rose and David Bray were harmed; and,
“Four, that the County of Fresno’s conduct was a substantial factor
in causing harm to Melissa Rose and David Bray.”
The parties agreed to this version of the instruction. The parties had disputed the
use of a prior version containing (1) the words “in a pace line” after the two references to
“road bicycling” and (2) a different wording of the first element.
The special verdict form asked whether the County did “something or fail[ed] to
do something that unreasonably increased the risks to [plaintiffs] over and above those
inherent in road cycling.” The jury answered, “Yes.” The vote was eleven to one. In
addition, the jury answered “No” when asked: “When you consider the likelihood and
seriousness of potential injury, compared with (a) how much time and opportunity
COUNTY OF FRESNO had to take action, and (b) the practicality and cost of protecting
against the risk of injury, was COUNTY OF FRESNO’S failure to take sufficient steps to
protect against the risk of injury created by the dangerous condition reasonable under the
circumstances?”
C. Proof an Inherent Risk Was Increased
To reiterate, County argues that there is no evidence it increased the risk of harm
to bicyclists riding in a paceline. County asserts that obstacles in the roadway and bike
lane, including sand, are recognized hazards of road cycling and the risks posed by such
obstacles are part of the risks inherent in road cycling.
1. Background
To reach the issue about whether an inherent risk was unreasonably increased, we
make the same two assumptions made by the First District in Williams. First, the primary
assumption of risk doctrine applies to claims against public entities for injuries caused by
a dangerous condition of public property. (Williams, supra, 55 Cal.App.5th at p. 130.)
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Second, the group bicycle ride in which Rose and Bray participated constitutes a type of
sports activity covered by the primary assumption of risk doctrine. (Ibid.)
We note Williams also discussed a third legal issue—whether the county owed the
bicyclist the limited duty not to unreasonably increase the inherent risks of that sporting
activity. (Williams, supra, 55 Cal.App.5th at p. 130.) That issue was raised by the
county’s argument that it had no role in cycling and no relationship to the plaintiff and,
therefore, “it owe[d] no duty to avoid unreasonably increasing the inherent risks of her
cycling activity.” (Id. at p. 131.) The First District rejected this argument after analyzing
whether imposing the limited duty would promote or undermine the policy goals of the
primary assumption of risk doctrine. (Id. at pp. 130–133.) In this appeal, County has not
raised the issue and, therefore, we conclude County owed the plaintiffs the limited duty
not to unreasonably increase the inherent risks of road cycling. In other words, the trial
court’s jury instruction on the primary assumption of risk correctly stated the law.
2. The Concept of an Inherent Risk
Our analysis of County’s argument is divided into two parts. The first addresses
the concept of a sporting activity’s inherent risk. We regard this issue as a question of
law about the scope of the limited duty.
County’s briefing asks: “If small amounts of sand in a bike lane is a hazard to
cyclists, as the witnesses testified, why does the size and depth of the sand mean the
County increased the risk? It would seem that sand in the bike lane is an inherent risk of
long-distance recreational cycling and as a matter of law the size of the obstacle nor its
depth changes that fundamental premise, particularly when cyclists can lawfully enter the
drive lane to avoid the sand.” County reiterated its contention, stating: “The presence of
‘more’ sand does not increase the risk and no affirmative act on the part of County
increased the risk to [plaintiffs].” County’s argument seems to imply that (1) increasing
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the risks inherent in a recreational activity means not adding a new risk and (2) obstacles
and related falls are not a new risk for bicyclists.
In Williams, the court addressed whether the county breached its duty not to
increase the inherent risks of long-distance, recreational cycling by failing to repair the
pothole that caused plaintiff’s fall. (Williams, supra, 55 Cal.App.5th at p. 133.) The
county argued that falling and obstacles in the road were inherent risks of long-distance,
recreational cycling and appeared to contend that all obstacles and related falls are
inherent risks of the activity. (Id. at pp. 133–134.) The court rejected this argument,
stating:
“As explained in Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354,
365, even though ‘falling off a horse is an inherent risk of horseback
riding[,] … 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.’ (Accord, Jimenez v. Roseville City School Dist. (2016) 247
Cal.App.4th 594, 610 [‘We accept that unwanted contact with the floor is
an inherent risk of any kind of dancing, because as a matter of common
experience any dancer may slip, or dancers may collide, causing a fall.
[Citations.] But that does not mean every time a dancer contacts the floor,
it is because of an inherent risk of dancing.’]; Yancey v. Superior Court
(1994) 28 Cal.App.4th 558, 565 [‘The discus, by its nature, involves
launching a dangerous projectile. In the general sense, anyone within the
area … is subject to some risk of being struck by the thrown discus. But …
is the careless conduct of a participant in throwing the discus without first
ascertaining the target area is clear an inherent risk of the sport? We think
not.’].) By the same reasoning, a pothole so large as to ‘pose a hazard to …
[a]nything on the roadway’ is a road obstacle, but is not an inherent risk of
long-distance, recreational cycling.” (Williams, supra, 55 Cal.App.5th at
p. 134.)
Thus, the First District rejected the suggestion “that every road obstacle is an
inherent risk of long-distance cycling.” (Williams, supra, 55 Cal.App.5th at p. 134.) We
join this legal conclusion and reject the argument that every obstacle is an inherent risk of
road bicycling. As a result, while obstacles, including sand, in a bike lane are an inherent
risk of long-distance, recreational cycling, we reject County’s suggestion that sand in a
32.
bike lane, regardless of the quantity present, never increases the inherent risk of a
bicyclist falling. Stated from another perspective, we conclude falling because of sand is
an inherent risk in road bicycling that can be unreasonably increased.
3. Evidence of a Breach of the Limited Duty
The second part of our analysis addresses County’s argument about the sufficiency
of the evidence. Under the basic principles that define tort liability and the primary
assumption of risk doctrine, the existence of a duty and whether that duty was breached
are separate elements. Our inquiry into the sufficiency of the evidence does not address
the scope of the limited duty not to increase inherent risks. Instead, it considers whether
a breach occurred because County unreasonably increased the inherent risk of road
bicycling.
The parties recognize that there is a split of authority on whether a breach of the
limited duty not to increase the inherent risks of a recreational activity presents a question
of law or fact. “Some courts have held the jury decides whether the defendant’s conduct
increased the inherent risks of a sport. [Citations.] [¶] Other courts … have concluded
that because the primary assumption of the risk doctrine involves issues of duty, the trial
court determines both prongs of the duty analysis.” (Huff v. Wilkins (2006) 138
Cal.App.4th 732, 745; see Williams, supra, 55 Cal.App.5th at p. 134.) This split in
authority is not important for purposes of this appeal because the parties and trial court
agreed that a question of fact was presented in this case. County’s reply brief states it
“did not disagree that, despite the split of authority, the issue of increasing the risk of
falling beyond that inherent in the activity is a question of fact.” County also asserted:
“This does not change the standard regarding a nonsuit or directed verdict as detailed in
County’s opening brief that the issue can be decided as a matter of law when no other
reasonable conclusion is legally deducible from the evidence.” Accordingly, we consider
whether the factual question of whether County unreasonably increased the risk of a
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bicyclist falling beyond that inherent in road bicycling can be decided in County’s favor
as a matter of law. Stated from the opposite point of view, does substantial evidence
support the jury’s factual finding that the sand bar in the bike lane unreasonably increased
the risks inherent in road bicycling.
Initially, we note that the issue of an unreasonable increase in an inherent risk is
related to the question of whether there was a dangerous condition of public property. In
Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, the Supreme Court stated: “ ‘If
the risk of injury from third parties is in no way increased or intensified by any condition
of the public property … courts ordinarily decline to ascribe the resulting injury to a
dangerous condition of the property.’ ” (Id. at p. 1137, italics added.) Here, the
dangerous condition created by the sand bar increased the risks of intermingling with
vehicular traffic and falling because it blocked the bike lane and put bicyclists in the
position of having to merge into traffic to avoid the sand or ride over the edge of the sand
to avoid traffic. The jury’s determination that the increase in risk was unreasonable is
supported by the length of time the hazard existed without being addressed (i.e., 27 days).
Therefore, we cannot conclude as a matter of law that there was no unreasonable increase
in the risks inherent in road bicycling.
IV. JURY INSTRUCTIONS ADDRESSING NEGLIGENCE PER SE
“A party is entitled upon request to correct, nonargumentative instructions on
every theory of the case advanced by him which is supported by substantial evidence.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) The propriety of a proposed
jury instruction is a question of law subject to de novo review on appeal. (Harb v. City of
Bakersfield (2015) 233 Cal.App.4th 606, 617.) To obtain a reversal, an appellant must
show an instructional error occurred and was prejudicial. (Ibid.; see Cal. Const., art. VI,
§ 13; Code Civ. Proc., § 475.)
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A. Proposed Instruction
County submitted a proposed jury instruction based on CACI No. 418, which
addresses the presumption of negligence per se. The statutory provisions included in
County’s proposed instruction were Vehicle Code sections 21200, 22107, 21208, and
21760.
Vehicle Code section 21200, subdivision (a)(1) states: “A person riding a bicycle
or operating a pedicab upon a highway has all the rights and is subject to all the
provisions applicable to the driver of a vehicle by this division.”
Vehicle Code section 22107 provides: “No person shall turn a vehicle from a
direct course or move right or left upon a roadway until such movement can be made
with reasonable safety and then only after the giving of an appropriate signal in the
manner provided in this chapter in the event any other vehicle may be affected by the
movement.”
The portion of Vehicle Code section 21208 quoted in County’s proposed
instruction states: “(a) Whenever a bicycle lane has been established on a roadway
pursuant to Section 21207, any person operating a bicycle upon the roadway at a speed
less than the normal speed of traffic moving in the same direction at that time shall ride
within the bicycle lane, except that the person may move out of the lane under any of the
following situations: [¶] … [¶] (3) When reasonably necessary to leave the bicycle lane
to avoid debris or other hazardous conditions.”6
Vehicle Code section 21760 contains the Three Feet for Safety Act (Veh. Code,
§ 21760, subd. (a)), which sets forth requirements for drivers of a motor vehicle who,
while driving on a highway, overtake a bicycle that is proceeding in the same direction.
6 Subdivision (b) of Vehicle Code section 21208, which was not included in the
proposed instruction, provides: “No person operating a bicycle shall leave a bicycle lane
until the movement can be made with reasonable safety and then only after giving an
appropriate signal in the manner provided in Chapter 6 (commencing with Section
22100) in the event that any vehicle may be affected by the movement.”
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County’s opening brief does not assert the refusal to instruct on this section constituted
error and, therefore, this opinion does not discuss this section other than to note it does
not impose any requirements on bicyclists.
After setting forth the Vehicle Code text, the proposed instruction stated: “If you
decide [¶] 1. That Melissa Rose and/or David Bray violated any of these laws, and [¶]
2. That the violation was a substantial factor in bringing about the harm, then you must
find that Melissa Rose and/or David Bray was negligent unless you also find that the
violation was excused. [¶] If you find that Melissa Rose and/or David Bray did not
violate this law or that the violation was not a substantial factor in bringing about the
harm, then you must still decide whether Melissa Rose and/or David Bray was negligent
in light of the other instructions.”
The trial court refused to give County’s proposed instruction based on CACI
No. 418. In making a record of what occurred during the jury instruction conference held
off the record, defense counsel stated:
“As to 418, our position was and still is that Vehicle Code 21200(a)
makes applicable code sections within that division. The division is Rules
of the Road. Rules of the Road included Vehicle Code section 22107,
21208(a)(3), and 21760. [¶] During our conference Your Honor
mentioned this would not be given, and we also asked for permission to
propose separate instructions to be read for each of these code sections, and
that also was declined.”
“So for our record then, we do note that the code sections relate to
bicycle conduct under 21760. They do need to have a safe space, and they
have to keep the same minimum space that vehicles do, 3 feet. Under
21208(a)(3), they may leave the bike lane to avoid debris or other
conditions, and when they fail to do so, they have not taken advantage of
that code section.”
“Under 22107, moving within a lane can be done only when done
with reasonable safety. Given an appropriate signal, in the manner
provided by this division of the Vehicle Code, the movements and
directional travel of each of the Plaintiffs did not comply with that code
section, and it does apply to bicyclists -- is our position.”
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On appeal, County contends the trial court erroneously refused to give
“instructions requested by County as it pertains to Vehicle Code section[s] 21200, 21208
and 22107.” County asserts “[i]t is for the jury to decide how the facts apply to the law,
but this jury was not allowed to consider that because the law was never given” and,
absent the law, the jury could not properly decide the case and reach a verdict.
B. Analysis
We do not consider whether the trial court erred in refusing to give a negligence
per se instruction because the County’s reply brief states County “is not making the
argument as to negligence per se” but is arguing the trial court should have granted its
request that the jury be instructed about the Vehicle Code provisions “separately from
CACI 418.”
Vehicle Code section 21208, subdivision (a) states that bicyclists “shall ride within
the bicycle lane” and, when specified situations arise, the bicyclist “may move out of the
lane.” County’s argument that the jury should have been instructed on this provision
because the jury was ignorant of the law is not supported by the record. Officer Walczak
was asked whether bicyclists are required to “always ride in the bike lane” and he
answered, “[i]f there is one provided for them.” Next, Officer Walczak was asked
whether bicyclists are “allowed to move outside the bike lane” and he answered, “Yes.”
In a follow-up question, he was directed to turn to tab 443 in County’s trial notebook,
which contained Vehicle Code section 21208, and was asked whether “this code section
permit[s] bicyclists to move outside the bike lane if there is some condition in the bike
lane.” He answered, “Yes.”
Officer Walczak also testified that Vehicle Code section 21200 requires bicyclists
“to adhere to the same laws as a motor vehicle” and he determined that Rose violated
Vehicle Code section 22107, which prohibits unsafe turning movements. As a result of
Officer Walczak’s testimony, the jury was aware that, under the Vehicle Code, a bicyclist
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is allowed to move out of the bike lane, bicyclists are subject to the general rules of the
road contained in the Vehicle Code, and Officer Walczak believed Rose made an unsafe
turning movement in violation of one of the rules of the road. Thus, County’s assertion
that the jury was never given the law and, thus, “never had an opportunity to consider that
… law of the state” was contradicted by the record.
In addition, during his closing argument, defense counsel referred to Officer
Walczak’s testimony and a Vehicle Code provision by stating: “Did the County require
them to establish a certain path? No. [¶] Because the Vehicle Code, as we heard from
Officer Walczak, allows cyclists to go outside the bike lane.”
Based on the testimony and argument presented, we conclude the jury was aware
of the law and, contrary to County’s opening brief, was not “left … without a proper legal
basis to find that Rose and Bray should have moved into the roadway and that the County
was not liable.” Also, the contention that County should not be liable because of a
negligent failure to leave the bike lane makes little sense under California’s system of
comparative fault. (See generally, Li v. Yellow Cab Co. (1975) 13 Cal.3d 804.)
Negligence by plaintiffs does not automatically lead to the conclusion that the defendant
public entity has no liability for a dangerous condition of public property. (See Fredette,
supra, 187 Cal.App.3d at p. 131 [plaintiff’s contributory negligence is a matter of defense
and has no bearing on whether a dangerous condition existed in the first instance].)
As a court of review, we infer the jury evaluated the argument rather than ignoring
it. Stated from another perspective, County has cited nothing in the record to support the
inference that the jury ignored the testimony of Officer Walczak and the argument of
defense counsel. (See generally, Denham v. Superior Court (1970) 2 Cal.3d 557, 564
[judgment is presumed correct and appellant must affirmatively demonstrate prejudicial
error].)
Finally, we conclude County has failed to demonstrate the purported instructional
error resulted in prejudice. The jury was aware of the Vehicle Code provisions and,
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therefore, it is not a reasonable probability that a jury instruction repeating information
the jury already had would have resulted in a verdict more favorable to County. (See
Soule v. General Motors Corp., supra, 8 Cal.4th at p. 574 [test for prejudice].)
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
DE SANTOS, J.
WE CONCUR:
PEÑA, ACTING P. J.
MEEHAN, J.
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