Christenson, Kyle D v. Auburn CDJR

the risk acts as a complete defense provided the defendant did not engage in conduct that unreasonably increased the risks inherent in the sport or that would pose a hazard to foreseeable users outside of the primary assumption of the risk doctrine: “driving, riding a motorcycle, and bicycling as a means of transportation.” (Williams, supra, at pp. 130– 32.)

Defendant’s evidence shows plaintiff was participating in the sport of recreational road cycling when the incident occurred. (SSUMF Nos. 12, 15, 17–20, 22, 24.) Defendant provides evidence by way of expert testimony that encountering potholes is an inherent and common occurrence of recreational road bicycling. (Bretting Decl., ¶ 13.) Accordingly, the primary assumption of the risk doctrine applies and acts as a complete defense provided defendant did not engage in conduct that unreasonably increased the risks inherent in the sport or that would pose a hazard to other foreseeable users of the roadway. (Williams, supra, 55 Cal.App.5th at pp. 130 – 32.)

There is no evidence defendant knew or should have known about this pothole prior to this incident (SSUMF No. 25), nor is there any evidence that defendant did anything to increase the risk inherent in recreational road cycling. Defendant submits expert testimony that this pothole would not pose a hazard to four-wheeled vehicles or motorcycles due to the shape of the pothole, the condition of its edges, and how traffic would interact with the pothole. (Neuman Decl., ¶ 9.) Defendant meets its initial burden of showing the primary assumption of the risk doctrine applies and acts as a complete defense against plaintiff’s claim.

The burden therefore shifts to plaintiff to show one or more triable issues of material fact. Towards that end, plaintiff submits a response to defendant’s separate statement, which presents some argument as to some of defendant’s facts but does not dispute any of defendant’s facts with evidence. Plaintiff also submits a separate statement of additional material facts (“SSAMF”) relying heavily on his declaration about the incident. While plaintiff did not submit any expert testimony, plaintiff presents evidence this pothole was not a minor crack or ordinary roadway irregularity and was larger and deeper than those he had commonly encountered while riding on public roads. (SSAMF Nos. 2, 3.)

Plaintiff also presents evidence that immediately before the incident, he was riding in a portion of the roadway commonly used by cyclists traveling city streets, he was looking ahead and paying attention to the roadway, and he was not racing or participating in a competitive cycling event. (SSAMF Nos. 5, 8.) While these are additional facts pertaining to the incident, they fall short of disputing the issue of defendant’s duty and the application of the primary assumption of the risk doctrine. Plaintiff therefore falls short of his burden of showing one or more triable issues of material fact.