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The Morrison Law Journal
October 2017
Volume XII, Edition 10

A Primary Assumption of the Risk: Court of Appeal Affirms Summary Judgment In
Serious Personal Injury Action Involving Off Road Dirt Bike Accident

By: Edward F. Morrison, Jr., Esq.
Larry A. Schwartz, Esq.

In 1992, the California Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 considered the duty of care that governs the liability of participants in certain sports and activities and ruled that those involved in a sporting activity do not have a duty to reduce the risk of harm that is inherent in the sport itself. Instead, the California Supreme Court held that there is a limited duty of care to co-participants in such activities which may be "breached" only if the participant intentionally injures the plaintiff or engages in reckless conduct as to be totally outside the range of the ordinary for that activity.

Significant questions, of course, have arisen over whether there is a triable issue of fact as to "recklessness" when a participant in a sports activity encourages a beginner or novice to continue on with the activity or misdescribes the danger in the activity. This past month, the California Court of Appeal, Second Appellate District, in the matter of Foltz v. Johnson (2017) WL 4803950 ("Johnson case") ruled that, in a serious personal action arising from a dirt bike accident involving a steep sand dune in the Mojave Desert, the primary assumption of risk doctrine not only applied but, as a matter of law, the conduct of the co-participant did not increase the risk inherent in off-road dirt biking such that summary judgment should be affirmed.

In the Johnson case, Kimberly Foltz, Plaintiff, and Darryl Wayne Johnson, Defendant, were each riding their dirt bikes at the Dove Springs Off-Highway Vehicles Area in the Mojave Desert on the weekend of September 4, 2011. Foltz and Johnson were engaged at the time of the accident. During their relationship, the couple had frequently taken their blended family to Gorman, California or Dove Springs to camp and ride dirt bikes. Johnson is an experienced dirt biker and Foltz was not. However, Foltz, prior to the weekend in question, had brought her own 185 cc dirt bike and she had ridden her dirt bike during five weekend trips in the months before the accident.

As for the subject accident, the family had gone camping at Dove Springs for Labor Day Weekend. On the afternoon of September 4, 2011, Johnson had suggested that he and Foltz ride to a dry riverbed about an hour away. Foltz testified in deposition that, after about two hours of riding on a riverbank trail, Johnson had suggested that they go further and that there would be more (flat) trails. Based on the promise of more flat trails, Foltz agreed. At some point thereafter, however, Foltz refused to continue and made a U-turn and started to descend down a hill. While descending a steep terrain, at about 40 miles per hour, Foltz was unable to control her bike. A few minutes later, her


bike stopped when it hit a rock and Foltz was thrown over the handlebars and suffered severe spinal injuries.

A personal injury lawsuit was filed in December of 2012. Defendant Johnson later filed a Motion for Summary Judgment asserting that Foltz had assumed the risk of injury by engaging voluntarily in an inherently dangerous sport: off road biking. The Trial Court granted summary judgment on the basis that the Plaintiff had engaged in an inherently dangerous activity and Johnson had not been reckless. On appeal, the Court of Appeal affirmed, ruling that Johnson's alleged promise of a continued or additional flat trail was insufficient as a matter of law to increase the inherent risks of off road biking and was not reckless. The Court of Appeal also noted that a party cannot change the inherent nature and risk of a sport activity by making a request for other participants to play less vigorously or to make the activity safer.

The Foltz case is important in that it illustrates that summary judgment can be granted based on primary assumption of the risk involving participants in sports activities who become injured, even where the defendant may have made the activity more (inherently) dangerous.
About the Authors: Edward F. Morrison, Jr. is the founding partner and Larry A. Schwartz is Of Counsel to The Morrison Law Group, a professional corporation. Their biographies can be viewed at

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