Whitehead v. City of Oakland CA1/3 ( 2024 )


Menu:
  • Filed 1/22/24 Whitehead v. City of Oakland CA1/3
    NOT TO BE PUBLISHED IN OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
    publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
    ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    FIRST APPELLATE DISTRICT
    DIVISION THREE
    TY WHITEHEAD,
    Plaintiff and Appellant,
    v.
    CITY OF OAKLAND,                                                       A164483
    Defendant and Respondent.
    (Alameda County
    Super. Ct. No. RG18896233)
    Plaintiff Ty Whitehead sued defendant City of Oakland for injuries he
    suffered after his bicycle hit a pothole during a training ride for the AIDS
    LifeCycle fundraiser. Prior to the training ride, plaintiff signed an agreement
    releasing the “owners/lessors of the course or facilities used in the Event”
    from future liability. The trial court granted defendant’s motion for summary
    judgment, concluding the release was enforceable. Plaintiff appeals, arguing
    the release was invalid because it concerned a matter of public interest.
    Plaintiff also contends the court erred by failing to address whether there
    was a triable issue of fact as to defendant’s gross negligence. We affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    In March 2017, plaintiff participated in a group training ride for AIDS
    LifeCycle, a multi-day group bicycle ride fundraiser from San Francisco to
    1
    Los Angeles. As plaintiff was injured during that ride, we describe the
    nature of the AIDS LifeCycle training rides for context.
    The AIDS LifeCycle fundraiser advertises a training system to help its
    participants build up and prepare for the long-distance ride to Los Angeles.
    The training system features training ride leaders who select cycling routes
    with specific start times and rest stops; these routes are posted on the AIDS
    LifeCycle website, and participants reserve spots for their selected rides. The
    training system is designed to ensure there are enough certified training ride
    leaders to support the number of riders, and the leaders are responsible for
    informing riders of the organization’s code of conduct and safety rules before
    every ride. On longer training rides, a “support and gear” person follows the
    riders by car to offer support. Training ride leaders are tasked with ensuring
    participants sign waivers in order to participate in training rides.
    Training ride leaders must be “certified,” which involves a combination
    of in-person classroom instruction by AIDS LifeCycle staff and outdoor
    bicycling instruction. The instruction emphasizes safety and how to coach
    riders on safety rules and practices. Training ride leaders must re-certify
    every two years; re-certification requires additional classroom instruction and
    participation in a minimum of about ten training rides to remain in “good
    standing.”
    The route for the training ride at issue in this case was 50 miles long,
    which would take roughly seven to eight hours to complete. About 41 people
    were on the training ride with plaintiff. During the ride, plaintiff—an
    experienced cyclist and a certified training ride leader himself (though not
    the leader for this particular ride)—hit a pothole that was approximately one
    to two inches deep, 18 inches across, and 14 inches long. Plaintiff flipped
    over his bicycle handle bars, hit his head on pavement, and suffered injury.
    2
    The accident occurred on Skyline Boulevard near the intersection at Grass
    Valley Road.
    Prior to but on the same day as the training ride, plaintiff signed a
    document entitled “AIDS/LifeCycle Training Ride GENERAL
    INFORMATION AND RELEASE AND WAIVER OF LIABILITY,
    ASSUMPTION OF RISK, AND INDEMNITY AGREEMENT” (hereafter “the
    release”). The release contained the following assumption of risk provision:
    “RISKS: ASSUMPTION OF RISK. I understand that the Event is
    potentially a hazardous activity, and that accidents during the Event could
    lead to serious injury, death and/or property damage, both to me and to
    others. Risks associated with the Event may include, but are not limited to:
    [¶] using public streets and facilities where hazards such as broken pavement
    and road debris may exist; [¶] being struck by, or colliding with . . . road
    debris; [¶] . . . ; [¶] negligence or carelessness of . . . owners/lessors of the
    course or facility owners (which may include state and local governmental
    entities); [¶] negligence or carelessness in the implementation or enforcement
    of any rules, regulations or guidelines related to the Events and/or in the
    selection, use, or maintenance of any equipment, course, competition, facility
    or service related to the Events. [¶] I understand that the Event may expose
    me to risks other than those listed above and that the risks may not be
    reasonably foreseeable to me, [or the organizers]. In consideration for being
    allowed to participate in the Event, I hereby assume all risks associated with
    the Event, even those risks which are not reasonably foreseeable at this
    time.” (Bullet points and underlining omitted.) The release expressly
    defined the “Event” as including training rides leading up to the seven-day
    ride from San Francisco to Los Angeles.
    3
    The release also included a waiver and release provision: “WAIVER
    AND RELEASE. To the maximum extent permitted by law, I hereby
    release, waive, forever discharge and covenant not to sue the Releasees . . . .
    from all liabilities, claims, costs, expenses, damages, losses and obligations, of
    any kind or nature . . . which may arise or result (either directly or indirectly)
    from my participation in the Event.” The release went on: “For the
    avoidance of doubt, the Released Liabilities include all bodily injury . . . I may
    suffer which arises or results (either directly or indirectly) from my
    participation in the Event, including through any negligence of the
    Releasees.” As relevant here, the release defined “Releasees” as including
    “the owners/lessors of the course or facilities used in the Event.” (Italics
    added.)
    Additionally, the release expressly relinquished any rights under Civil
    Code section 1542, which at the time provided: “A general release does not
    extend to claims which the creditor does not know or suspect to exist in his or
    her favor at the time of executing the release, which if known by him or her
    must have materially affected his or her settlement with the debtor.”
    (Former Civ. Code, § 1542, amended by Stats. 2018, ch. 157, § 2, eff. Jan. 1,
    2019.)
    Plaintiff filed this suit alleging that defendant failed to maintain and
    repair Skyline Boulevard and that the location of the accident was in a
    dangerous condition due to the pothole that plaintiff hit. Plaintiff’s complaint
    alleged one cause of action for dangerous condition of public property (Gov.
    Code, § 835 et seq.) and one cause of action for public employee or contractor
    liability for a dangerous condition.
    Defendant’s first motion for summary judgment contended in part that
    the primary assumption of risk doctrine barred plaintiff’s recovery. The trial
    4
    court granted summary adjudication of the cause of action for public
    employee liability because plaintiff had not sued any of defendant’s
    employees. But the court denied summary judgment, concluding defendant
    had not, as a matter of law, “negated the element of duty under the primary
    assumption of risk doctrine.” The court, however, noted its ruling as to the
    primary assumption of risk doctrine was “without prejudice” to defendant
    renewing that argument in a future motion for summary judgment based on
    the release.1
    Plaintiff subsequently filed a motion for summary adjudication of
    defendant’s affirmative defenses of waiver and assumption of risk. Relying
    on Tunkl v. Regents of University of Cal. (1963) 
    60 Cal.2d 92
     (Tunkl), plaintiff
    contended the release was void because it affected a matter of public interest,
    i.e., the maintenance of safe public roads. Plaintiff also argued defendant
    could not rely on the primary assumption of risk doctrine, because the alleged
    dangerous condition affected all road users, not just recreational cyclists.
    Defendant filed a cross-motion for summary judgment contending plaintiff’s
    claim was barred by the release, by plaintiff’s express assumption of risk, and
    by the primary assumption of risk doctrine.
    The trial court denied plaintiff’s summary adjudication motion,
    concluding plaintiff failed to demonstrate the release was contrary to public
    policy and void as a matter of law. The court noted plaintiff erroneously
    applied Tunkl to defendant’s “alleged failure to maintain a safe road and
    repair the pothole, rather than the subject of the waiver and release, which is
    the organized recreational group training ride.” The court also found
    1      Defendant indicated it learned of plaintiff’s execution of the release
    after filing its first summary judgment motion.
    5
    summary adjudication improper because plaintiff failed to address the
    portion of defendant’s defense based on express assumption of risk.
    By separate order, the trial court granted defendant’s motion for
    summary judgment on the ground that plaintiff’s execution of the release
    bars his claim for liability arising from a dangerous condition of public
    property. Having so ruled, the court expressly declined to address the
    parties’ contentions regarding the primary assumption of risk doctrine.
    After the trial court entered judgment dismissing the complaint with
    prejudice, plaintiff filed a notice of appeal, and defendant filed a notice of
    cross-appeal.
    DISCUSSION
    A. The release of liability is enforceable
    Plaintiff contends the trial court erred in granting summary judgment
    because the release he signed affected a public interest and was therefore
    invalid.
    To resolve whether a release is invalid, “ ‘we conduct not only a de novo
    examination of the moving and opposing papers to determine whether
    [defendant] is entitled to judgment as a matter of law [citation], but also
    conduct a de novo examination of the release document. Where, as here, no
    conflicting parol evidence is introduced concerning the interpretation of the
    document, “construction of the instrument is a question of law, and the
    appellate court will independently construe the writing.” ’ ” (YMCA of Metro.
    L.A. v. Superior Court (1997) 
    55 Cal.App.4th 22
    , 26.)
    Civil Code section 1668 provides: “All contracts which have for their
    object, directly or indirectly, to exempt anyone from responsibility for his own
    fraud, or willful injury to the person or property of another, or violation of
    law, whether willful or negligent, are against the policy of the law.”
    6
    In Tunkl, the California Supreme Court considered whether “a release
    from liability for future negligence imposed as a condition for admission to a
    charitable hospital” was enforceable under section 1668. (Tunkl, supra, 60
    Cal.2d at p. 94.) Finding that the subject agreement between a hospital and
    an entering patient affected the public interest, Tunkl concluded the release
    included within the agreement was invalid. (Ibid.)
    In examining whether section 1668 invalidated the release, the Tunkl
    court observed that judicial interpretations of Civil Code section 1668 were
    consistent in holding that “the exculpatory provision [i.e., the release] may
    stand only if it does not involve ‘the public interest.’ ” (Tunkl, supra, 60
    Cal.2d at p. 96.) Noting that “[n]o definition of the concept of public interest
    can be contained within the four corners of a formula,” the Supreme Court set
    forth a “rough outline of that type of transaction in which exculpatory
    provisions will be held invalid.” (Id. at p. 98, italics added.) In the high
    court’s words, “the attempted but invalid exemption involves a transaction
    which exhibits some or all of the following characteristics. [1] It concerns a
    business of a type generally thought suitable for public regulation. [2] The
    party seeking exculpation is engaged in performing a service of great
    importance to the public, which is often a matter of practical necessity for
    some members of the public. [3] The party holds himself out as willing to
    perform this service for any member of the public who seeks it, or at least for
    any member coming within certain established standards. [4] As a result of
    the essential nature of the service, in the economic setting of the transaction,
    the party invoking exculpation possesses a decisive advantage of bargaining
    strength against any member of the public who seeks his services. [5] In
    exercising a superior bargaining power the party confronts the public with a
    standardized adhesion contract of exculpation, and makes no provision
    7
    whereby a purchaser may pay additional reasonable fees and obtain
    protection against negligence. [6] Finally, as a result of the transaction, the
    person or property of the purchaser is placed under the control of the seller,
    subject to the risk of carelessness by the seller or his agents.” (Id. at pp. 98–
    101, fns. omitted, italics added.)
    The Tunkl court explained the rationale for this rule as follows: “While
    obviously no public policy opposes private, voluntary transactions in which
    one party, for a consideration, agrees to shoulder a risk which the law would
    otherwise have placed upon the other party, the [circumstances in which a
    public interest is involved] pose a different situation. In this situation the
    releasing party does not really acquiesce voluntarily in the contractual
    shifting of the risk, nor can we be reasonably certain that he receives an
    adequate consideration for the transfer. Since the service is one which each
    member of the public, presently or potentially, may find essential to him, he
    faces, despite his economic inability to do so, the prospect of a compulsory
    assumption of the risk of another’s negligence.” (Tunkl, supra, 60 Cal.2d at
    p. 101, italics added.)
    Notably, in 2007 the Supreme Court observed that then-recent
    appellate decisions had “concluded categorically that private agreements
    made ‘in the recreational sports context’ releasing liability for future ordinary
    negligence ‘do not implicate the public interest and therefore are not void as
    against public policy.’ ” (City of Santa Barbara v. Superior Court (2007) 
    41 Cal.4th 747
    , 759–760 & fns. 12–17 (City of Santa Barbara), and cases cited;
    Hass v. RhodyCo Productions (2018) 
    26 Cal.App.5th 11
    , 29–30 (Hass), and
    cases cited.) Particularly relevant here, Okura v. United States Cycling Fed’n
    (1986) 
    186 Cal.App.3d 1462
     (Okura) “establishes that bicycle racing . . . is not
    a matter sufficiently affected with the public interest so as to void clear and
    8
    unambiguous exculpatory clauses.” (Buchan v. United States Cycling Fed’n
    (1991) 
    227 Cal.App.3d 134
    , 152.)
    In Okura, the appellant was injured after hitting loose debris while
    participating in a bicycle race on closed portions of the public streets in the
    City of Hermosa Beach. (Okura, supra, 186 Cal.App.3d at pp. 1464–1465.)
    The appellant sued the city and others, alleging negligence in the preparation
    and maintenance of the course. (Id. at p. 1464.) The trial court granted
    summary judgment against the appellant based on a release he signed that
    “discharge[d] in advance the promoters, sponsors, . . . the officials, and any
    involved municipalities or other public entities (and their respective agents
    and employees), from and against any and all liability arising out of or
    connected in any way with my participation in said event, even though that
    liability may arise out of negligence or carelessness on the part of the persons
    or entities mentioned above.” (Id. at p. 1465, italics added and omitted.)
    Okura affirmed the grant of summary judgment, finding the release
    was not void as against public policy. (Okura, supra, 186 Cal.App.3d at
    pp. 1465–1466, 1469.) After assessing each of the Tunkl factors, the court
    concluded “[t]his situation does not present a transaction affecting the public
    interest.” (Okura, at p. 1468.) As to the first Tunkl factor—whether the
    exemption involves a transaction that concerns a business generally
    considered suitable for public regulation—the court found the transaction
    was “entry into a public bicycle race organized by private nonprofit
    organizations” and “the organized racing of bicycles is not the subject of
    public regulation.” (Okura, at p. 1466.) With regard to the second Tunkl
    factor—whether the party seeking exculpation is engaged in performing a
    service of great public importance—the court stated: “The service provided
    here was the organization and running of competitive bicycle races for
    9
    members of the organizers and the public,” which “cannot be termed one that
    ‘is often a matter of practical necessity for some members of the public.’ ”
    (Okura, at pp. 1466–1467.)
    As to the third Tunkl factor—whether the service was open to the
    public—Okura indicated anyone with a bicycle and entrance fee could enter.
    (Okura, supra, 186 Cal.App.3d at p. 1467.) With regard to the fourth and
    fifth Tunkl factors—the essential nature of the service and the economic
    setting of the transaction, and whether the exculpated party has a superior
    bargaining power and confronts the public with a standardized adhesion
    contract of exculpation—the court reiterated the service provided was a
    leisure time activity that was not essential. (Okura, at p. 1468.) The court
    stated, “The relative bargaining strengths of the parties does not come into
    play absent a compelling public interest in the transaction.” (Ibid.) As for
    the last Tunkl factor—whether the person or their property is placed under
    another’s control—Okura noted there was no such release of control. (Okura,
    at p. 1468.)
    This case is materially indistinguishable from Okura. At bottom,
    plaintiff executed a release in exchange for entry into a recreational cycling
    activity that was organized for fundraising purposes. In line with Okura and
    the other decisions cited by the Supreme Court in City of Santa Barbara,
    supra, 
    41 Cal.4th 747
    , we conclude the trial court properly found the release
    valid and enforceable because the cycling event was a nonessential sports
    activity that did not affect the public interest within the meaning of Civil
    Code section 1668.
    Plaintiff argues that, for purposes of the Tunkl release analysis, the
    focus should be on defendant’s provision and maintenance of public streets
    and highways—and not on the activity or transaction for which the release
    10
    was given, i.e., participation in the cycling fundraiser. Viewed in this
    manner, the instant release affected the public interest in the provision and
    maintenance of public roads. This reading of Tunkl, however, is off the mark
    and unconvincing.
    Tunkl itself couched its analysis in terms of determining whether the
    transaction for which the release was given is one that affects the public
    interest. (See, e.g., Tunkl, supra, 60 Cal.2d at p. 98, italics added [“the courts
    have revealed a rough outline of that type of transaction in which exculpatory
    provisions will be held invalid”]; id. at p. 101, italics added [“obviously no
    public policy opposes private, voluntary transactions in which one party, for a
    consideration, agrees to shoulder a risk which the law would otherwise have
    placed upon the other party”]; id. at p. 102 [“The admission room of a hospital
    contains no bargaining table where, as in a private business transaction, the
    parties can debate the terms of their contract.”].)
    Likewise, in Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 
    106 Cal.App.4th 662
    , the court held: “Under Tunkl . . . determining whether a
    release of liability affects the public interest, and is thus void as a matter of
    public policy, requires analysis of the transaction giving rise to the contract—
    not the allegedly negligent conduct by the party invoking the release.” (Gavin
    W., at p. 670, some italics added.) And more recently, the Supreme Court
    said this: “Tunkl’s public interest analysis focuses upon the overall
    transaction—with special emphasis upon the importance of the underlying
    service or program, and the relative bargaining relationship of the parties—in
    order to determine whether an agreement releasing future liability for
    ordinary negligence is unenforceable.” (City of Santa Barbara, supra, 41
    Cal.4th at p. 762, italics added.)
    11
    In this case, the overall transaction was plaintiff’s signing of a release
    of liability so that he could participate in the AIDS LifeCycle fundraiser and
    its organized training rides on defendant’s streets. We cannot, as plaintiff
    urges, ignore this aspect of this case. Likewise, it cannot reasonably be
    concluded that a cycling fundraiser is an essential service such that plaintiff
    was robbed of his free will in deciding whether to sign the release. As Okura
    explained, “People are not compelled to enter the event but are merely
    invited to take part. If they desire to take part, they are required to sign the
    entry and release form. The relative bargaining strengths of the parties does
    not come into play absent a compelling public interest in the transaction.”
    (Okura, supra, 186 Cal.App.3d at p. 1468; see Hass, 
    supra,
     26 Cal.App.5th at
    p. 31 [“half marathons are not an activity of great importance to the general
    public and are certainly not a matter of necessity. No racer is required to
    enter a particular event or to run it in any particular way.”].)
    Plaintiff contends “anomalous results” would result if “one who
    provides a service that does not involve a public interest could require a
    consumer to exempt from liability another who provides a service that does
    involve such an interest.” “By parity of reasoning,” plaintiff asserts, “the
    converse would also be true: a provider of a service that did not involve a
    public interest would be entitled to enforce an exemption from liability in its
    own contract but would be precluded from enforcing it if it was contained in
    the contract of a provider of a service that did involve a public interest.”
    (Italics omitted.) To the extent plaintiff offers anomalous hypothetical
    situations to support his point, we are unpersuaded. We look only to the
    facts before us, bearing in mind that “Tunkl’s public interest analysis focuses
    upon the overall transaction.” (City of Santa Barbara, 
    supra,
     41 Cal.4th at
    p. 762.)
    12
    Plaintiff contends Okura is factually distinguishable because it
    involved a competitive race on a closed course, and both the organizers and
    the City of Hermosa Beach were sued for alleged negligence in the
    preparation and maintenance of the course. But plaintiff cannot escape the
    Tunkl analysis by simply focusing on defendant’s allegedly negligent
    maintenance of a public road and altogether ignoring that he signed the
    release to participate in a recreational event. Indeed, he is suing defendant
    for its allegedly negligent maintenance of a public road that was specifically
    selected as part of the AIDS LifeCycle training system for group training
    purposes. The release here expressly covered any negligence in the
    maintenance of both the official course and the routes used for training
    purposes. As defendant points out, there is no distinction between the bicycle
    race in Okura and the organized cycling events here at issue on the critical
    point that all the activities were recreational in nature and did not implicate
    the public interest.
    Contrary to plaintiff’s contention, Lewis Operating Corp. v. Superior
    Court (2011) 
    200 Cal.App.4th 940
     aligns with our application of the Tunkl
    analysis. In Lewis Operating Corp., a residential apartment tenant sued his
    landlord after suffering injury in the onsite exercise facility. (Lewis
    Operating Corp., at pp. 943 & fn. 1, 946.) The tenant’s rental agreement
    included a release governing the use of the on-site exercise facility. By
    executing the rental agreement, the tenant agreed to the release. (Id. at
    p. 943.) The Court of Appeal concluded summary judgment should have been
    granted in favor of the landlord based on the plaintiff’s execution of the
    release. (Id. at pp. 943–944.) While acknowledging that residential leases
    affect the public interest, the court reasoned that providing the amenity of an
    onsite exercise facility was outside the “basic, heavily regulated offering of a
    13
    residential dwelling” and that “providing health club or exercise facility
    services has repeatedly been held not to invoke the ‘public policy’ rule of
    Tunkl.” (Id. at p. 946.) Lewis Operating Corp. plainly focused on the subject
    of the contractual release, noting as we do here that Tunkl itself focused on
    the “subject transaction” for which the release was given. (Ibid.)
    In sum, the trial court correctly concluded the release was enforceable.2
    B. There was no triable issue of fact regarding gross negligence
    Plaintiff argues that even if the release is enforceable, the release could
    not absolve defendant of liability for gross negligence, and the trial court
    failed to address whether the evidence raised a triable issue of fact on this
    topic.
    Defendant acknowledges that a release cannot absolve a party from
    liability for gross negligence (City of Santa Barbara, supra, 41 Cal.4th at
    pp. 750–751), but it counters that plaintiff forfeited this claim by failing to
    adequately raise it below. On this score, defendant contends plaintiff
    presented no factual argument “explaining why or how [defendant’s] conduct
    rises to the level of gross negligence.”
    “ ‘Generally, the rules relating to the scope of appellate review apply to
    appellate review of summary judgments. [Citation.] An argument or theory
    will . . . not be considered if it is raised for the first time on appeal.
    [Citation.] . . . [P]ossible theories that were not fully developed or factually
    presented to the trial court cannot create a ‘triable issue’ on appeal.’ ”
    2     Our opinion is limited to the facts before us and should not be read as
    opining on the validity of a release in other contexts, e.g., where an AIDS
    LifeCycle participant is injured during a practice ride that is not part of the
    AIDS LifeCycle training program or where an injured participant suffers
    additional harm as a result of medical malpractice at a treating hospital.
    14
    (DiCola v. White Brothers Performance Products, Inc. (2008) 
    158 Cal.App.4th 666
    , 676.)
    “[O]rdinary negligence ‘consists of a failure to exercise the degree of
    care in a given situation that a reasonable person under similar
    circumstances would employ to protect others from harm.’ [Citation.]
    ‘ “[M]ere nonfeasance, such as the failure to discover a dangerous condition or
    to perform a duty,” ’ amounts to ordinary negligence. [Citation.] However, to
    support a theory of ‘ “[g]ross negligence,” ’ a plaintiff must allege facts
    showing ‘either a “ ‘ “want of even scant care” ’ ” or “ ‘ “an extreme departure
    from the ordinary standard of conduct.” ’ ” ’ ” (Anderson v. Fitness Internat.,
    LLC (2016) 
    4 Cal.App.5th 867
    , 881 (Anderson).) “[I]n cases involving a
    waiver of liability for future negligence, courts have held that conduct that
    substantially or unreasonably increased the inherent risk of an activity or
    actively concealed a known risk could amount to gross negligence, which
    would not be barred by a release agreement. [Citation.] Evidence of conduct
    that evinces an extreme departure from manufacturer’s safety directions or
    an industry standard also could demonstrate gross negligence. [Citation.]
    Conversely, conduct demonstrating the failure to guard against, or warn of, a
    dangerous condition typically does not rise to the level of gross negligence.”
    (Ibid.)
    Here, plaintiff’s opposition to defendant’s motion for summary
    judgment made multiple, if somewhat brief, references to gross negligence.
    For example, the introduction to his opposition asserted defendant’s motion
    should be denied because “the City increased the risk of harm to the public
    (which cannot be assumed under primary assumption of the risk or with a
    written waiver if the risk increases to the level of gross negligence, a question
    of fact[)].” The opposition also included assertions that defendant cannot
    15
    evade accountability through the release “for increasing the risk of harm that
    rises to gross negligence (a question of fact),” and that defendant “increased
    the risk of harm on Skyline in multiple ways: Installing the distracting and
    dangerous ‘rumble strips’ trap just uphill from the pothole; Misprioritizing
    and delaying repairs, exposing more people to more severe harm; and Poorly
    maintaining the road based on ‘missing’ data that it never even tried to
    obtain or provide warning to the public.” Plaintiff’s opposition also
    referenced his motion for summary adjudication, where he cited to a portion
    of Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 
    25 Cal.App.5th 344
     stating that “conduct that substantially or unreasonably
    increased the inherent risk of an activity or actively concealed a known risk
    could amount to gross negligence, which would not be barred by a release
    agreement.”
    Notably, however, plaintiff’s opposition contained no clear argument as
    to how defendant’s alleged deficiencies amounted to gross negligence. As the
    trial court indicated when plaintiff mentioned gross negligence at the
    summary judgment hearing, plaintiff had “merely float[ed]” the idea that
    there was gross negligence, thus leaving the court to guess what exactly his
    gross negligence theory was. The record bears this out. Although plaintiff
    claimed defendant increased the risk of harm in several ways, he never
    explained how defendant’s alleged conduct substantially or unreasonably
    increased the risk in a way that amounts to gross negligence, much less
    pointed to evidence of a substantial or unreasonable increase in risk.
    But even assuming plaintiff adequately raised the issue such that the
    trial court erred in declining to address it, he fails to show grounds for
    reversal. (Cal. Const., art. VI, § 13; Code Civ. Proc., § 475.)
    16
    Plaintiff points to evidence in the record that he claims shows “[t]he
    City suspected it was missing data that would help prioritize repairing or
    repaving bikeways yet failed to take steps to verify its data were complete or
    obtain additional data.” Specifically, Jason Patton, a “Bicycle and Pedestrian
    Program Manager” with defendant’s Department of Transportation, testified
    during a deposition about a 2007 email he wrote wherein he said he
    suspected “ ‘collisions involving pavement issues are significantly
    underreported.’ ” When asked why he had suspected this, Patton explained
    he has personally seen people fall off their bicycles and ride on, apparently
    without reporting their fall. But Patton also stated that incidents involving
    serious injury are most likely to have a police response and result in records
    that come to defendant’s attention. Patton asserted it was much more
    important to have the data defendant did have (i.e., serious injury data)
    rather than data of all unreported falls like the ones he observed. When
    asked if he had done anything to increase the accuracy of “collision data” on
    Oakland bikeways, Patton stated, “We are not well positioned to improve the
    accuracy of the data in that the police department creates it and the
    California Highway Patrol processes it. We’re not able to change that data,
    nor should we be changing it.” When asked if he had done anything to
    capture more data, such as by asking local bicycle groups to report all
    collisions, he responded he had not made any formal requests though he had
    encouraged people involved in bicycle crashes to report them.
    Plaintiff also refers to a declaration by his expert, Shakir Shatnawi,
    Ph.D., a civil engineer with training and education in transportation
    engineering. According to Shatnawi, “a municipality that suspects it is
    ‘missing data’ that would help to prioritize repairing or repaving a bikeway
    like Skyline [citation] should take steps [to] verify that its data are complete
    17
    or obtain additional data. At a minimum, a City employee who suspects that
    data are missing should report that concern to his or her supervisor so that
    appropriate steps can be taken to address it, like conducting inspections.
    Ignoring the fact that data are missing increases the risk of harm to road
    users (motorists, bicyclists, etc.), because it delays repairing or repaving the
    road. The longer that a pavement defect exists, the more dangerous it
    becomes.”
    The evidence that a city employee suspected underreporting of data
    concerning falls or collisions based on his personal observations does not
    constitute evidence that data material to the issue of gross negligence
    actually existed. Plaintiff’s theory is at best speculative and does not create a
    triable issue as to whether defendant’s conduct marked an extreme departure
    from the ordinary standard of conduct or whether it substantially or
    unreasonably increased the inherent risk of an activity or actively concealed
    a known risk. (See Anderson, 
    supra,
     4 Cal.App.5th at p. 881.)
    Plaintiff also points to portions of Shatnawi’s declarations opining that
    the pavement in the area of plaintiff’s incident was in “major structural
    distress and had failed”; the City knew or should have known there was a
    risk of potholes on such a road and a high risk such potholes would present a
    dangerous condition to bicyclists on Skyline; City personnel patched a pothole
    in the area in September 2015; and at a minimum the City should have
    returned to the area to inspect it regularly. Shatnawi also asserted that
    “ ‘alligator cracking’ ”—which is “a series of interconnecting cracks caused by
    fatigue failure of the asphalt concrete surface under repeated traffic
    loading”—is considered “ ‘a major structural distress’ ” and that potholes
    generally “ ‘are recorded as high severity alligator cracking.’ ”
    18
    Plaintiff fails to explain how this evidence supports a triable claim of
    gross negligence. Shatnawi appears to say that whenever a street shows
    signs of alligator cracking or there is a risk of potholes forming, a city should
    inspect it regularly. But “conduct demonstrating the failure to guard against,
    or warn of, a dangerous condition typically does not rise to the level of gross
    negligence.” (Anderson, supra, 4 Cal.App.5th at p. 881.) Here, Shatnawi
    offered no basis for a conclusion that defendant’s conduct exceeded such
    ordinary negligence. Indeed, defendant’s evidence established without
    contradiction that predicting the development of potholes from existing
    cracking cannot be done reliably, and that defendant had never received any
    complaint or notification of the pothole at issue.
    Finally, plaintiff argues there was evidence that defendant “increased
    the risk of harm by misclassifying defects on Skyline.” For this he cites to the
    portion of Kenneth Patton’s declaration explaining that service requests for
    reports of potholes or defects in bicycle lanes are always assigned “priority 1”
    (the most urgent priority for repair), while potholes or other defects in bicycle
    routes are assigned a “priority 2”; and that priority 1 potholes are repaired
    within 1 to 5 days, while priority 2 repairs are made within weeks. During
    his deposition, Patton reviewed various service requests for potholes or
    defects on Skyline Boulevard dating back to 2009. He could not explain why
    “priority 3” (the least urgent priority for repair) was assigned to some of these
    service requests, which indicated potential errors in the priority assignment
    or perhaps initial misdescriptions of the issue.
    That mistakes may have been made in prioritizing service requests
    does not assist plaintiff’s case. The evidence of misprioritization concerned a
    mere handful of service requests, some of which were made many years
    before the incident in question. Such evidence falls far short of establishing a
    19
    triable issue that defendant’s conduct reflected an extreme departure from
    the ordinary standard of conduct. Moreover, there is no evidence that these
    select mistakes substantially or unreasonably increased the inherent risk of
    the cycling activity at issue.
    In sum, the trial court correctly granted summary judgment based on
    the release. In light of this conclusion, we need not and do not address the
    dispute between the parties as to whether the doctrine of primary
    assumption of risk forecloses plaintiff’s claim.
    DISPOSITION
    The judgment is affirmed. Defendant is entitled to costs on appeal.
    (Cal. Rules of Court, rule 8.278.)
    _________________________
    Fujisaki, J.
    WE CONCUR:
    _________________________
    Tucher, P.J.
    _________________________
    Petrou, J.
    Whitehead v. City of Oakland (A164483)
    20
    

Document Info

Docket Number: A164483

Filed Date: 1/22/2024

Precedential Status: Non-Precedential

Modified Date: 1/22/2024