Did Allegedly Suboptimal Conditions Trump Participant’s Assumption of Risk?
In September 2016, Joseph C. Fritz was injuried during a motocross practice at the Walden motocross track, a recreational facility owned and operated by Walden Playboys M.C. Inc. Fritz went off a jump and lost control of his bike after landing in a hole on the track. Fritz and his spouse, derivatively, sued Walden and others for negligence. Walden answered and asserted several affirmative defenses, including that Fritz had assumed the risk of injury when he engaged in the sport of motocross. Following discovery, Walden moved for summary judgment, arguing that Fritz’ claims were barred by the primary assumption of risk doctrine. Fritz opposed the motion, arguing that Walden created an unreasonable risk of harm by failing to address a hole that developed on the track, which was caused by their negligent grooming of the track with soil that was too dry. Supreme Court denied the motion. Walden appealed.
The primary assumption of risk doctrine provides that, by engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Therefore, if the risks of the activity are fully comprehended or perfectly obvious, a participant has consented to them and the venue has performed its duty.
Such consent also extends to suboptimal playing conditions that are readily apparent. But a participant is not, however, deemed to have assumed risks that are concealed or unreasonably enhanced. As a result, when determining whether the doctrine applies, the Court assesses the participant’s knowledge of the dangerous condition and consequent risk against the background of his or her skill and experience.
Here, the record established that Fritz was the quintessential motocross expert. He testified that he had 43 years of experience riding motocross and owned a track–and was well aware of the risks of injury inherent to motocross from having previously suffered more injuries than he could count. He further testified that he was quite familiar with Walden’s track, having been there “probably over a thousand times” before the accident, and that he could perform the jump where he was ultimately injured “pretty much blindfolded.”
As it related to the accident, the record revealed that Fritz went out on his first practice lap with the expert class of riders and “something really strange happen[ed],” which caused his “bike to react funny” when he landed the jump. Specifically, he testified that the back of his bike “kicked up” but he was able to recover. Rather than pulling off the track to investigate, Fritz testified that he had to “feel the track out” and “if there’s something a little strange with the track . . . [he has] to figure [that] out so [he] can deal with it on race day.”[
On his second practice lap, Fritz adjusted his take-off for the jump by moving over about a foot and a half from the main line of riders. And Fritz testified that he landed in “deep powder” that was “like talcum powder” and the back of his bike kicked up again. He explained that he tried to recover because he had been doing this “a long time” and that he “wasn’t going to just bail off the motorcycle,” but that he was ultimately thrown over the handlebars, causing him to sustain injury.
While he was on the ground, Fritz observed a pothole filled with dry soil, which he estimated to be about three feet long, two feet wide and eight inches deep. Fritz further testified that, although he knew that holes developed and the track deteriorated from other riders, it was unusual for a hole to form that early in the day and that the powdery type of dirt was something “totally different than anything [he had] ever seen there before.”
Walden also provided the testimony of several volunteer club members, who collectively testified that the dirt used in grooming the track came from the pits on the track’s property; the dirt was not new or different than what was ordinarily used; and the conditions on any motocross track could change every 5 to 10 minutes as a race continued. Those points were echoed by Walden’s expert, who submitted an affidavit in support of its motion for summary judgment, averring that motocross is an “inherently risky activity” and riders encounter “constantly-changing conditions” that cannot be entirely prevented because, while imperfect, they are “unavoidable” and even “integral to the activity.” He further stated that the hole that caused Fritz’s accident was “not an unusual condition” on a motocross track, and that the presence of sandy or powdery dirt is not uncommon and “within the normal range of variable terrain encountered by motocross riders.”
Based on the foregoing, the Court found that Walden satisfied its moving burden of demonstrating that Fritz assumed the risk inherent in the sport of motocross. Upon that showing, it was incumbent on Fritz to demonstrate facts from which it could be concluded that Walden unreasonably enhanced the danger or created conditions which were unique or above those inherent in the activity.
Fritz argued that he did not observe the dry soil that Walden used to groom and fill the landing area pothole until after his accident and when he was on the ground, But it was clear from the record that Fritz was immediately aware of a condition in that landing area that was “strange” and caused his bike to react “funny.” But, based on his experience and need to “feel the track out,” he went around for another practice lap. And despite that Fritz did not visually observe the dirt or the pothole before his fall, the record established that motocross riders would not typically see a landing area until they are past it—a point stressed by Fritz not only in this matter, but also in an unrelated matter where he testified that landing areas were “blind” and therefore riders had to rely on flaggers to warn them of a hazard on the ground in the landing area such as a downed bike or rider. As a result, Fritz testified at several points in the record that motocross riders had to “feel” out a track and the conditions. This was also what Fritz explained he was doing after his first lap and why he would not just pull off, testifying that he “wasn’t really sure . . . what was going on with this section of the track.” In instances like this, where it was clear that Fritz was aware of a condition but nevertheless continued with his activity, the doctrine of primary assumption of risk has been applied—including where the defect was partially concealed and not directly observed .
The record was unclear whether Fritz, in recognizing that something strange happened to his bike the first time he landed the jump, was specifically aware that his bike’s reaction was due to the dry soil filling the pothole. But it was not necessary to the application of the doctrine that Fritz may have foreseen the exact manner in which the injury occurred, so long as he was aware of the potential for injury of the mechanism from which the injury results.
Fritz testified that on both jump landings the back end of his bike “kicked up,” he hit the same pothole and had to work to recover the bike. So the Court was satisfied that he was aware of the potential for injury on that jump’s landing. For that reason, the Court rejected Fritz’ conflicting testimony that it was not customary for there to be a hole in a landing area, because he also testified that he had experienced them before—including on the first lap’s landing—and that ruts and bumps were what gave a motocross track character, thereby further establishing that such holes were inherent to the sport .
To the extent that Fritz challenged Walden’s use of the dry, talcum powder-like soil, his affidavit in opposition narrowly claimed that he previously told Walden that he would not use such soil on his track. However, that narrow position did not rebut the opinion by Walden’s expert that the soil was within the range of normal soil conditions to be expected on a motocross track or otherwise offer evidence that such dry soil was inappropriate in his accident scenario or as an industry standard. And, despite taking issue with Walden’s use of that soil and their grooming, Fritz also conceded in the unrelated matter that “[t]here’s no exact recipe to grooming a track” and the purpose of grooming was to soften the dirt on the top layer, which is better than a hard pack for riding. Those conclusory and conflicting statements by Fritz were insufficient to create an issue of fact.
Accordingly, because Fritz did not raise an issue of fact as to whether Walden concealed or unreasonably increased the risks to which Fritz was exposed, Walden’s motion should have been granted.
DISSENT
The dissent agreed that Fritz, who was unquestionably an experienced motocross rider, raised a question of fact as to whether Walden concealed or unreasonably enhanced the risks he confronted on the day he was injured. In his deposition, Fritz testified that there was a “big pothole” on the landing of the jump that had been filled with powdered dirt. He observed that the hole “was probably about three feet long, probably two feet wide and, I don’t know . . . maybe eight inches deep.” Fritz explained that the powdered dirt was not compacted and caused the track to deteriorate rapidly, when, under ordinary conditions, a track would “get rougher and rougher[,] progressively.” Fritz, who had owned his own motocross track for 16 years at the time of his deposition, acknowledged that it was customary for there to be ruts and bumps on a track, but “[n]ot on landings or take-offs.” Fritz was familiar with the track and maintained that he had previously warned Walden not to utilize the type of powdered dirt that was present on the date of his injury. Nevertheless, as he was “laying on the ground . . . [he] could see . . . that this dirt was like a talcum powder type dirt, which [was] totally different than anything [he] had ever seen [at the jump location] before.”
In his first practice run, sometime between 10:30 a.m. and 11:00 a.m., Fritz explained that “something really strange happened.” To that end, he explained that the back of his bike “like kicked up” and, although he “regained control of the motorcycle, . . . [he] wasn’t really sure what happened”. On the second run, he adjusted the jump by moving about 18 inches to the right but hit the same hole when his “bike kicked up in the air . . . and the front wheel was like in . . . deep powder.” He explained that, “[a]s soon as [he] landed[, his] speed was abruptly slowed because of this deep powder dirt,” causing him to “go over the handlebars.” Viewed in a light most favorable to Fritz, the operative point of his testimony was that Walden arguably enhanced the risks of injury by filling a deep hole at a landing point with the wrong type of dirt that easily gave way, creating a dangerous condition that caused Fritz’s crash. Fritz’s uncertainty as to what happened on the first run and his slight adjustment of the travel lane indicated that the hole in the track was not open and obvious, or at least raised a question of fact in that regard. Ultimately, it was not the trial court’s role, on summary judgment, to assess the fact-bound question of whether the track’s conditions as described by Fritz unreasonably enhanced the inherent risks of the event.
As to Walden’s awareness of the condition, the record indicated that the track was groomed prior to the practice session, which began around 9:00 a.m. Kyle Kasnowski, who performed the grooming, testified that there was no hole before the session began but he observed the hole on his first run. Katherine Fox, president of Walden at the time of the incident, testified that Chris Traina, whose son was a novice rider, informed her that his son advised her that there was a hole at the jump. Traina also directly complained to Fritz, who repeated the complaint to Fox before going on his second run. In response, Fox testified that she immediately radioed the two members of the safety committee, Steve Kasnowski and Wayne Clark, and asked them “to check it out.” Fox affirmatively testified that they checked out the landing site “because [she] asked them to,” but acknowledged she did not confirm that they actually did so. For his part, Steve Kasnowski testified that he did not check out the hole before the incident and the record did not include any statement from Clark. It followed that a question of fact also existed as to whether Walden had a reasonable opportunity to repair the hole and yet failed to do so.