Filed 3/29/22 Williams v. CrossFit Anywhere Folsom CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
ERIC WILLIAMS, C087568
Plaintiff and Appellant, (Super. Ct. No. 34-2015-
00187668-CU-PO-GDS)
v.
CROSSFIT ANYWHERE FOLSOM, LLC,
Defendant and Respondent.
Plaintiff Eric Williams was injured when a cyclist collided with him during an
early morning group exercise run. Williams sued defendant CrossFit Anywhere (CFA),
the fitness club that had organized the run. Following the trial court’s grant of summary
judgment to CFA, Williams appeals contending (1) a liability release he signed was
unenforceable because it was subtitled, “insurance jargon”; (2) CFA’s failure to satisfy
minimum safety standards constituted gross negligence; (3) being struck by a cyclist is
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not an inherent risk of participating in a group fitness class; and (4) triable issues of fact
exist as to whether CFA could have minimized the risk without fundamentally altering
the nature of the activity.
We affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
Williams sued CFA for negligence. Williams alleged he was a paid participant in
a fitness class organized by CFA. During the class, he was instructed by CFA employees
to go for a run, which included running on a trail adjacent to Folsom Lake Crossing road.
During the run, Williams was hit from behind by a cyclist traveling at high speed and
suffered “grave injuries.”
Williams alleged, inter alia, that CFA had negligently or recklessly failed to
supervise the run, and failed to provide lighting for participants, which significantly
increased the risk of harm and was a substantial cause of the collision.
CFA’s Motion for Summary Judgment
CFA moved for summary judgment, averring Williams had signed a liability
waiver assuming the risk of injury. The release, according to CFA, was easily readable,
placed in a manner to compel notice, and was broad enough to cover the injury, as CFA
had not acted in a grossly negligent manner.
CFA attached the signed release to the motion. One page was titled,
“AGREEMENT AND RELEASE OF LIABILITY.” Under that was a subtitle in
parentheses, “(more insurance jargon).” Below that were three numbered paragraphs,
each initialed by Williams. One paragraph provided in part: “. . . I do hereby waive,
release and forever discharge CrossFit Anywhere . . . from any and all responsibilities or
liability for injuries or damages resulting from any participation in any activities . . . .”
Another paragraph provided in part: “I also understand that fitness activities involve a
risk of injury and even death and that I am voluntarily participating in these activities . . .
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with knowledge of the dangers involved. I hereby agree to expressly assume and accept
any and all risks of injury or death.” Another page of the membership agreement was
titled, “INFORMED CONSENT AGREEMENT” and included the subtitle, “(insurance
jargon).” It too was signed by Williams and referenced the general assumption of
numerous risks.
CFA also argued that running on the trail involved the inherent risk of collision
with bicycles. Williams had run the trail before, knew it was shared by joggers and
cyclists, and had not complained that it was unsafe. In an attached deposition transcript,
Williams testified that he had “zero” recollection of the day of the accident, and his last
recollection before that January 2015 accident was a “a vague . . . recollection of
Thanksgiving . . . 2014.” He also testified that he had run the hill run between three and
seven times before. The trail had a sign telling cyclists to keep right and pedestrians to
keep left. Williams also testified that when he signed up for CFA, he expected that he
would be doing exercises that included “[c]ircuit training, running, and lifting.”
Williams testified that he felt the trail was unsafe. He explained that sometimes
while working with patients on the trail (he had been a paramedic), “a bicyclist zooms by
us, and it’s just a major threat and problem.” When asked, “Were you ever provided any
kind of headlamp or light by [CFA]?” he testified, “Never.”
Defendant’s motion also argued that instructing a fitness class to run on a paved
trail is not “totally outside the range” of how a fitness class should be conducted.
Furthermore, CFA had told its members to be safe, to use the left-hand side of the trail,
and had made lights available for running outside. In an attached deposition transcript, a
CFA member, who was present during the accident, testified that coaches had told them
to stay on the left-hand side, and “we had been told numerous times to bring lights and
lights are available.” She also testified, “[t]he lights are always made available, but [the
coaches] did not tell us that we had to take one,” nor were members told to wear
reflective clothing.
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As to the incident, the member testified the run was a 1.8-mile, mostly inclined,
timed run, on a pedestrian path near the dam and the Johnny Cash Bridge, followed by a
jog back. She also testified that she knew she was going to go for a run because she had
checked the CFA website the night before.
According to the CFA member, certain places on the trail are not lit, and on the
day of the incident, it was “very, very dark.” They did not see bikes on the trail when
running up the hill. On her way back, she jogged with Williams. Three others were
jogging in front of them. Mid-conversation, while jogging side-by-side with Williams,
she heard the sound of impact and saw Williams being thrown. Before the accident, she
heard no noises and saw no lights behind her. They were on the left-hand side of the
trail, and Williams was on her right-hand side.
The motion also attached the deposition of the cyclist who hit Williams. He
testified that he was going about 25 to 30 miles per hour during the accident. He testified
he was riding on the right side of the bike lane and saw reflections from Williams’s shoes
a split second before colliding with him. The cyclist testified that he understood that
walking or jogging pedestrians were to run against traffic, and bikes would travel on the
right side of the yellow line.
The posted speed limit for bicycles was 15 miles per hour.
Williams’s Opposition to CFA’s Motion for Summary Judgment
Williams opposed the motion, arguing there was a triable issue of material fact as
to whether the release provided a complete defense. He pointed to the subtitle, “more
insurance jargon,” arguing it stood in contrast to other language in the agreement which
cautioned readers to “Please Read Carefully,” and thus rendered the release as a whole
inconspicuous, and therefore ineffective and void.
Williams went on to argue that even if he had waived negligent conduct, there was
a triable issue of fact as to gross negligence. He averred that sending a class to run in the
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dark, without notifying members that parts of the route would lack artificial light and
without instructing them to wear attire to make them visible, was an extreme departure
from the ordinary standard of care.
In support, he included two expert declarations with attached documents. One—a
declaration of Matthew Forsman, a full-time professional running coach since 2005, who
leads a running club and numerous group runs—averred that a 3.6-mile run is a “group
run” as used in the industry, and industry standards apply to coaches and trainers who
plan and direct group runs. One such standard is that at least one trainer or coach
accompanies the group run and ensures the visibility of the group. He wrote: “It would
be shocking if a coach planned and directed a group run, but then did not run with the
group and began training another class without taking any steps to make sure all runners
finished and made it back safely.”
Another standard, according to the expert’s declaration, is to avoid, when possible,
sending people out on group runs in areas that do not have adequate lighting. He
declared: “The industry standards require group run leaders to take steps to ensure their
runners can see and be seen during every run.” He also declared: “It would be very
disconcerting, and would constitute a radical departure from the norm, if a fitness club
directed its class members to participate in a run in the dark, on a shared-use trail without
street lights, without any coach or trainer accompanying the runners, without anyone
running sweep, without providing advance notice and instruction to bring reflective
apparel and lights, without warning members that the entire run would take place in the
dark and would pass through areas that were unlit, without instructing and reminding
members to put on lights and reflective vests, and without ensuring that the group as a
whole was equipped with adequate reflection and lights to ensure the group was visible.”
He called such a scenario “shocking to the vast majority of running coaches,” and a
failure to show “even the slightest regard for their obligation” to provide for the safety of
the group.
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Forsman cited and attached a document, “Guidelines for Leading a Group Run” by
the “Road Runners Club of America.” One guideline therein stated: “Avoid running on
trails in the evening if they are not well lit and do not have regular traffic.”
The other declaration was from David Gilbertson, a gym and fitness studio owner,
and gym and fitness consultant. He wrote: “a fitness center must ensure that there is
adequate lighting for the members to see and be seen,” and, “[i]t is an extreme departure
from the industry standard of conduct for a fitness center and personal trainer to design
an outdoor workout, and send members out to engage in an outdoor run, without making
sure that those members will be able to see and be seen.”
Gilbertson cited an attached document, “Safety in Training,” which included the
bullet point: “Is there adequate lighting (sun, field lights, street lights)? If not, are proper
reflective or illuminated tools or clothing available?”
Gilbertson also wrote that CFA’s failure to consider the safety of its workout and
whether its members could be seen, “was an extreme departure from the industry
standard of conduct.” He continued: “simply making [lights] available without
instructing the class members that a particular workout would take place in a dark and
dangerous area, which mandated that they bring a light, is woefully insufficient to meet
the basic industry standard and to keep [CFA] members safe. Tellingly, Mr. Williams
did not seem to be aware that lights were even available to him.” He also wrote:
“Mr. Williams did not sign up for a running club. He signed out for directed group
workouts as part of the [CFA] fitness program. This program includes weight-lifting and
whole body fitness. There is nothing inherent in these activities that requires members to
run in the dark, let alone to run in the dark without any lighting or safety precautions.”
Williams also averred in his response to the motion that primary assumption of the
risk did not apply because CFA unreasonably increased the risks beyond those inherent in
fitness training or group running. Williams argued that the CFA fitness class did not
“aim to challenge athletes to dodge bikes and cars, or to improve their night vision.” And
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“[t]here is nothing inherent in a fitness class, or even in running, that requires an
instructor to send a class running in the dark, on a bike path, with no illumination,
protections, or warnings.”
CFA’s Reply
In its reply, CFA averred that Williams’s opposition was largely based on the two
declarations. And Williams had not disputed the undisputed material facts with actual
evidence. CFA also moved to strike the expert declarations of Forsman and Gilbertson.
The Trial Court’s Order
The trial court granted CFA’s summary judgment motion and entered judgment
accordingly. In a written ruling, it sustained CFA’s objection to Williams’s two expert
declarations. The court noted that it need not consider expert testimony that constitutes a
conclusion of law. And while a court may receive testimony on the question of legal
duty for an “esoteric activity,” the court found nothing esoteric about the activity in
which Williams was engaged, and thus no expert testimony was necessary to determine if
the inherent risks were increased by CFA’s conduct.
The court went on to conclude that CFA had carried its burden of production,
while Williams had failed to carry his burden of producing admissible evidence
establishing a triable issue of material fact. It found none of Williams’s proffered issues
of disputed fact were truly material or borne out by the evidence.
As to the “insurance jargon” subtitle in the liability release, the court found no
triable issue of material fact, noting “the very evidence cited by the opposition confirms
that this provision was presented in such a way to ensure plaintiff’s attention and in plain
language explains that he was releasing defendant [CFA] from liability for any injury or
damages suffered while participating in [CFA’s] activities even if caused by a negligent
act or omission.”
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The court concluded that the undisputed evidence showed that plaintiff had
voluntarily signed a release covering CFA activities, including injuries caused by
negligence. And Williams had failed to offer evidence of gross negligence to overcome
the release. Williams also failed to offer evidence demonstrating a triable issue of
material fact relating to primary assumption of risk.
DISCUSSION
I
The Release of Liability
Williams first challenges the grant of summary judgment, contending the liability
release he signed was not enforceable. He argues that by labeling the release, “insurance
jargon,” CFA effectively told members it was unimportant, unreadable, or need not be
read, and therefore negated other features in the agreement that allowed the release to
stand out. In support, he cites Leon v. Family Fitness Center (#107), Inc. (1998)
61 Cal.App.4th 1227, 1232, which explains, “a release must not be buried in a lengthy
document, hidden among other verbiage, or so encumbered with other provisions as to be
difficult to find.” We hold the release is enforceable.
The crux of this issue is whether an apparently jocular subtitle can render an
otherwise unobjectionable, clearly stated liability release unenforceable. In the matter
before us, we conclude it does not. Williams offers no authority to support his contention
that a subtitle can undermine an otherwise proper release, and we are not aware of any.
Case law does, however, instruct on what an exculpatory agreement must do to be
effective.
A release “ ‘ “ ‘must be clear, unambiguous, and explicit in expressing the intent
of the subscribing parties,’ ” ’ ” though it “ ‘ “need not achieve perfection.” ’ ”
(Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 722.) A release may run afoul of this
requirement if the critical statement is “buried in the midst of a highly prolix sentence,
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which was itself surrounded by paragraphs of fine print.” (Bennett v. United States
Cycling Federation (1987) 193 Cal.App.3d 1485, 1489.)
Did the subtitles “(insurance jargon)” and “(more insurance jargon)” effectively
bury the critical statements? They did not. This is particularly so given that the subtitles
were placed under the more prominent titles, “AGREEMENT AND RELEASE OF
LIABILITY” and “INFORMED CONSENT AGREEMENT,” and that the critical
paragraphs had to be initialed, and the bottom of the page signed. On this record, we
conclude a reader would see the subtitles for what they were: an attempt at wry, self-
aware humor, and nothing more.
The release was therefore enforceable.
II
Gross Negligence
Williams next contends that if the release is valid, CFA can still be held liable
because its failure to satisfy minimum safety standards in planning and executing the
group run constituted gross negligence. In conjunction with this claim, Williams
contends the trial court erred in excluding his proffered expert declarations and
attachments. He argues such evidence is routinely relied upon to prove the existence of
an industry standard in connection with a gross negligence claim. And when those
declarations and accompanying documents are properly considered, a triable issue of fact
exists as to whether CFA’s conduct constituted an extreme departure from the ordinary
standard of care. He specifically points to the failure to instruct or remind runners to
wear reflective clothing and lights, to provide reflective gear to those without it, and to
select safe routes with adequate lighting.
At the outset, we find no error in the exclusion of Williams’s expert declarations
and accompanying exhibits. This court considered a similar contention in Towns v.
Davidson (2007) 147 Cal.App.4th 461, 465, where a skier was injured when a skiing
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employee of the ski resort collided with her. The trial court granted the defendants
summary judgment based on assumption of risk, and we affirmed that judgment on
appeal. (Id. at pp. 466, 474.) The plaintiff there argued she had shown a disputed issue
of fact supported by an expert’s declaration, which the trial court had refused to consider.
(Id. at pp. 470-472.) We concluded that striking the declaration was within the trial
court’s discretion, explaining that while such evidence can be used to oppose a summary
judgment motion, in the context of assumption of the risk the role of such experts is more
limited. (Id. at p. 472.) It is the court’s role to determine if the activity is an active sport,
its inherent risks, and whether those risks have been increased. (Ibid.) While a court
may inform its decision using expert factual opinion—particularly for unknown or
esoteric activity—the court may not receive expert evidence on the ultimate legal issues
of inherent risk and duty. (Id. at pp. 472-473.) And because the nature and risks of
downhill skiing are well understood, the demarcation of duty owed is judicially defined,
and the facts in the case were undisputed, there was little an expert opinion could add.
(Id. at p. 473.) We also noted the proffered expert opinion “ ‘was advocating, not
testifying.’ ” (Ibid.)
The same is true here. Running is not the sort of activity where expert factual
opinion is needed. The inherent risks of running are understood. And being hit by a
cyclist while running is not the sort of complex injury where an expert’s explanation is
helpful in determining if a duty has been breached. (Cf. Saffro v. Elite Racing, Inc.
(2002) 98 Cal.App.4th 173, 176 (Saffro) [expert declarations explained that the runner’s
injury, hyponatremia, is caused by the inability to consume adequate amounts of water
and fluids containing electrolytes].)
And indeed, here, the proffered declarations offered little more than advocacy: “It
would be shocking if a coach planned and directed a group run, but then did not run with
the group . . .”; and “There is nothing inherent in these activities that requires members to
run in the dark, let alone to run in the dark without any lighting or safety precautions.”
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There was, therefore, no abuse of discretion in striking the expert declarations.
(See also Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018)
25 Cal.App.5th 344, 356 (Willhide-Michiulis) [Citing Towns v. Davidson, and concluding
plaintiffs’ experts provided only ultimate conclusions of law, and “shed no light on the
subject except to say [the defendant’s] conduct was ‘an extreme departure from an
ordinary standard of conduct’ ”]; American Golf Corp. v. Superior Court (2000)
79 Cal.App.4th 30, 39 [“It will always be possible for a plaintiff who suffers a sports
injury to obtain expert testimony that the injury would not have occurred if the recreation
provider had done something differently. . . . Such expert opinion does not create a
triable issue of fact” as to assumption of the risk].) Williams maintains that courts are
split on the standard of review for such evidentiary rulings. This court applied the abuse
of discretion standard in Towns v. Davidson, supra, 147 Cal.App.4th at page 472 and
Willhide-Michiulis at page 356. But even under a de novo standard, we would find the
evidence properly excluded.
We further conclude, on the evidence properly admitted, there was no dispute of
fact as to whether CFA engaged in gross negligence. Gross negligence has been defined
as a “ ‘ “ ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of
conduct.’ ” ’ ” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754.)
Here, Williams offers no admissible evidence of such a departure. He does,
however, cite Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072
(Rosencrans) and Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546
(Jimenez), arguing they represent analogous departures from clear industry standards.
In Rosencrans, the plaintiff motocross rider was injured when he fell on the
downslope of a ramp, outside of view of other riders, and was hit by another rider.
(Rosencrans, supra, 192 Cal.App.4th at p. 1077.) The plaintiff complained that the
defendant track operator should have stationed a flagger at the location of the injury to
alert other riders of a fallen rider on the track. (Id. at p. 1078.) The trial court granted the
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operator summary judgment, and the appellate court reversed, concluding that whether
the operator’s conduct constituted gross negligence was a triable issue of fact. (Id. at
pp. 1079, 1086-1087.) The court cited evidence of an instruction manual for safety
flaggers and the declaration of a motocross safety expert, in concluding there was an
industry standard practice to have a flagger on the platforms at all times. (Id. at pp. 1079,
1086-1088.)
In Jimenez, supra, 237 Cal.App.4th 546, 549, the plaintiff was injured at a gym
when she fell from a moving treadmill and hit her head on an exercise machine,
positioned three feet 10 inches away. Evidence was presented that the treadmill owner’s
manual stressed the importance of providing a minimum six-foot safety clearance behind
the treadmill. (Id. at pp. 550-551.) The trial court, nevertheless, granted the gym
summary judgment, concluding in part that a space of three to four feet, rather than the
recommended six-foot difference cannot constitute gross negligence. (Id. at p. 553.) The
appellate court reversed, explaining that a jury could find that it is an industry standard
practice to provide a minimum six-foot safety zone around the treadmill based on the
owner’s manual and expert declaration, and that the departure from that standard was an
extreme departure from the ordinary standard of conduct. (Id. at pp. 557, 562.)
Williams argues that like in Rosencrans and Jimenez, he produced evidence that
CFA’s conduct was an extreme departure from clear industry standards, raising a triable
issue of gross negligence.
We do not find this argument persuasive. Rosencrans and Jimenez illustrate the
type of evidence helpful to establish an industry standard, as well as the type of esoteric
activity where such evidence is helpful. But, again, running on a public trail in dim light
is anything but esoteric, and the proffered expert evidence amounted to no more than
advocacy. And beyond that evidence, Williams points to nothing showing that
organizing an early morning run, with lights made available, ran afoul of an established
industry standard.
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In his reply brief, Williams challenges the assertion that lights were provided,
averring without citation: “One member says the items were available, but another
member says they were not.” He was apparently referring to himself, as he later cites his
own deposition, wherein he answered “Never,” when asked, “Were you ever provided
any kind of headlamp or light by [CFA]?” But Williams also testified to having “Zero”
recollection of the day of the accident, and that his last recollection before the accident
was “a vague . . . recollection of Thanksgiving . . . 2014.” (Evid. Code, § 702 [“the
testimony of a witness concerning a particular matter is inadmissible unless he has
personal knowledge of the matter”].)
We therefore conclude Williams has failed to show a triable issue of fact as to
gross negligence.
III
Inherent Risk
Next, Williams contends that being struck by a cyclist is not an inherent risk of
participating in a group fitness class, and therefore triable issues of fact exist as to
whether the doctrine of primary assumption of the risk bars his claim. He reasons that
the evidence shows he had no plans to participate in a trail run that morning, and no
reason to suspect he might be going for a long run when he arrived at CFA. In support,
he points to Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 358 (Solis), as
analogous.
In Solis, a skier at the defendant ski resort was injured when he inadvertently
entered an area recently altered for a ski race, which included hazardous man-made
jumps. (Solis, supra, 94 Cal.App.4th at p. 358.) The trial court found the suit barred by
assumption of the risk, and we reversed. (Id. at pp. 359, 367.) We noted that falling is an
inherent risk of skiing, which the resort has no duty to eliminate or mitigate. (Id. at
p. 364.) But there was evidence the resort, by creating the racing area, increased the risk
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of skiing beyond that inherent in the sport. (Id. at p. 365.) And by failing to mark off the
race area, an ordinary skier would not expect to encounter the jumps. (Ibid.) We held
that when a resort turns a previously ordinary ski run into a dangerous racing area, it
owes a duty to warn patrons. (Id. at p. 366.)
Williams argues that here too, a jury could conclude that he simply wanted to
participate in an indoor group fitness class. But due to CFA’s conduct, Williams found
himself participating in the sport of trail running instead, and “being struck by a cyclist is
not an inherent risk of participating in a group fitness class—especially one that typically
takes place indoors and consists primarily of strength training, as opposed to
cardiovascular, exercises.”
The evidence is that Williams enrolled in a cross fitness program and expected to
do exercises that included running. That Williams may or may not have checked the
morning’s activity on the CFA webpage the night before (Williams testified to “zero”
memory of the day of the accident) is of no moment.
Nor is Solis of any help. The critical feature of Solis is that the plaintiff was
engaged in one activity, with certain accompanying assumed risk, when without warning
he was made to engage in a different activity with greater risk—risks he had not assumed.
That was not the case here; the contention therefore fails.
IV
Duty to Minimize Risks
Finally, Williams argues that even if being struck by a cyclist is an inherent risk of
the activity in which he was participating, summary judgment was still improper because
disputed issues of fact exist as to whether CFA could have minimized that risk without
fundamentally altering the nature of the activity. In support he cites Morgan v. Fuji
Country USA, Inc. (1995) 34 Cal.App.4th 127 (Morgan), and Saffro, supra,
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98 Cal.App.4th 173, wherein a disputed issue was found as to whether the defendant
could have minimized the inherent risks without altering the nature of the activity.
In Morgan, supra, 34 Cal.App.4th at page 130, a golfer was injured by an errant
golf ball. Prior to the injury, a tree had provided some protection from errant balls in the
location of the injury. But the tree had been removed, and afterwards the plaintiff had
seen several balls nearly strike golfers. (Ibid.) The trial court granted the golf course
summary judgment based on assumption of the risk. (Ibid.) The appellate court
reversed, explaining that while errant balls are an inherent risk in golf, the course owner
and operator owes a duty to provide a reasonably safe golf course, and accordingly, “ ‘to
minimize the risks without altering the nature of the sport.’ ” (Id. at pp. 134-135.) The
owner therefore must design a course to minimize the risk of getting hit by balls. (Id. at
p. 134.) And to that, evidence showed the area where the injury occurred was
particularly dangerous due to the course design, which could support a finding of a
breach of duty. (Id. at pp. 134-135.)
Similarly, in Saffro, supra, 98 Cal.App.4th at page 176, a runner suffered
hyponatremia from the inability to consume adequate fluids with electrolytes during a
marathon. Before the run, the defendant race organizer had sent materials to runners
stating that there would be 23 refreshment stations with electrolyte fluid throughout the
course. (Ibid.) This, however, was not done. (Id. at p. 177.) The runner sued, but the
trial court granted summary judgment to the organizer based on assumption of the risk.
(Id. at pp. 177-178.) The appellate court reversed, finding triable issues of fact as to
negligence and causation. (Id. at p. 181.) Doing so, it held a race organizer owes a duty
to conduct a reasonably safe event and to minimize the risk without altering the sport’s
nature, which includes the duty to provide adequate water and electrolyte fluids along the
26-mile course. (Id. at p. 179.)
Here, Williams argues that like in Morgan and Saffro, CFA could have minimized
the risk without altering the activity’s nature by selecting a route with adequate lighting
15
along the entire path or instructing members on the need to protect themselves using
lighting and reflective apparel.
We find Morgan and Saffro factually distinguishable. In Morgan, the defendant
removed a tree that had previously provided protection from errant balls (a danger made
possible by the course design). Here, no safety feature had been removed by CFA, and
CFA merely made use of a public trail—it had no role in its design.
In Saffro the breach of duty revolved around the failure to provide electrolytes—
exacerbated by the promise that it would. Here, there was no such failure. Indeed, CFA
did provide lights. And we do not think that Saffro can be read so far as to conclude that
even if the organizer had provided electrolytes in water, it could be held liable if a runner
was injured after failing to drink the water.
More fundamentally, arguments similar to Williams’s have been raised before.
(See, e.g., Willhide-Michiulis, supra, 25 Cal.App.5th at p. 361 [argument that snowcats
operating on ski runs are neither necessary nor inherent to the sport].) Implicit in such
arguments is that primary assumption of the risk does not apply to an obvious risk if a
defendant could have feasibly provided safer conditions. (See Ibid. citing Souza v.
Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 269 (Souza).) Courts considering
such arguments, including this one, have agreed that such a conclusion “ ‘ “ ‘would
effectively emasculate the doctrine, . . . changing the critical inquiry . . . to whether the
defendant had a feasible means to remedy [the dangers].’ ” ’ ” (Willhide-Michiulis, at
p. 361; Souza, at p. 269; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th
8, 13 citing Verro v. New York Racing Assn, Inc. (1989) 142 A.D.2d 396, 400.)
And here too, with the benefit of hindsight, avoiding this injury may have been
feasible—but that is not the test. Indeed, forgoing the use of the public trail that day
would have avoided the speeding cyclist. As we have found Morgan and Saffro
distinguishable, we accordingly conclude Williams has failed to show a disputed issue of
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fact as to whether CFA could have minimized that risk further than it did or attempted to
do without fundamentally altering the nature of the activity.
DISPOSITION
The judgment is affirmed. Williams will pay CFA’s costs on appeal. (Cal. Rules
of Court, rule 8.278.)
HULL, J.
We concur:
RAYE, P. J.
ROBIE, J.
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