# Staniforth v. United States

> District Court, S.D. California · May 24, 2024

URL: https://www.frixlaw.com/law-library/cases/10640195

## Case

- **Court:** District Court, S.D. California
- **Decided:** May 24, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10640195

## How later opinions describe it (automated extraction)

- applying doctrine 21 to define duties of instructor to swimmer participating in junior lifeguard competition

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 RAYMOND STANIFORTH, Case No.: 23cv449-JM-MMP

12 Plaintiff,
ORDER ON DEFENDANT’S
13 v. MOTION FOR SUMMARY
JUDGMENT
14 UNITED STATES OF AMERICA,

15 Defendant.

16
17
18 Presently before the court is Defendant the United States of America’s Motion for
19 Summary Judgment (Doc. No. 15). Pursuant to Local Rule 7.1(d)(1), the court finds the
20 matters presented appropriate for resolution without oral argument. Having considered the
21 Parties’ arguments, the evidence, and the law, the court rules as follows.
22 BACKGROUND
23 I. Factual Background
24 The instant action arises from a motor vehicular collision involving Plaintiff and a
25 United States Border Patrol Agent.
26 A. The “G Road”
27 In 2013, Plaintiff purchased a property located at 875 Tierra Del Sol in Boulevard,
28 California. (Doc. Nos. 15 at 3; 15-2 at 59:15–16, 21–25). The Tierra Del Sol property is
1 adjacent to a privately owned parcel of land known as Haagen’s Ranch. (Doc. Nos. 1 at ¶
2 2; 15-2 at 59:17–23; 15-7 at 2; 20 at ¶ 4). The Ranch includes a dirt road—referred to as
3 the “G Road” by United States Border Patrol and the “Private Road” by the owners of
4 Haagen’s Ranch. (Doc. Nos. 15-7 at 1–2; 20 at ¶ 3). Plaintiff obtained permission to use
5 the G Road from the caretakers of Haagen’s Ranch sometime in 2013, when he purchased
6 his property. (Doc. Nos. 15-2 at 58:25–59:16; 20 at ¶¶ 7–8).
7 The G Road possesses “no trespassing” and “private road” signs, but lacks any traffic
8 signs—such as a stop sign, yield sign, or posted speed limit. (Doc. Nos. 15-2 at 57:8–14;
9 20 at ¶ 4). Although the road is approximately thirty-feet wide and possesses enough space
10 for two cars to pass in each direction, there are no designated traffic lanes. (Doc. Nos. 15-
11 2 at 58:5–9; 20 at ¶ 3).
12 The Department of Homeland Security, United States Customs and Border
13 Protection obtained an easement to the G Road in 2012, for law enforcement purposes.
14 (Doc. Nos. 15-7 at 2; 17-5 at 13–14; 20 at ¶ 9). Since that time, Border Patrol Agents have
15 used the G Road for many years. (Doc. No. 15-2 at 69:7–10).
16 B. The Vehicular Collision
17 On June 23, 2021, Plaintiff was riding his 2005 KTM EXC dirt bike, traveling north
18 on the G Road. (Doc. Nos. 1 at ¶ 2; 15-2 at 24:5–6; 15-4 at 9; 17-6 at 4). At the same time,
19 Border Patrol Agent Cesar Camacho was driving a government-owned 2020 Chevrolet
20 Tahoe, traveling south on the G Road. (Doc. Nos. 1 at ¶ 3; 15-3 at 1; 15-4 at 9; 17-6 at 4).
21 The two vehicles collided with each other. As a result of the collision, Plaintiff suffered a
22 broken right leg and injured his left shoulder. (Doc. No. 17-7 at 97:12–14, 18–23).
23 Plaintiff continues to experience pain preventing him from performing certain activities.
24 Id. at 182:2–186:25.
25 II. Procedural Background
26 On March 10, 2023, Plaintiff filed the Complaint in this action asserting a single
27 cause of action for negligence under the Federal Tort Claims Act (“FTCA”). (Doc. No. 1).
28 On June 16, 2023, the United States filed its Answer to Plaintiff’s Complaint. (Doc. No.
1 4). Fact discovery and expert discovery closed in this case on December 15, 2023 and
2 March 25, 2024, respectively. (Doc. No. 9 at 2, 4).
3 Following the close of discovery, the United States filed the instant Motion for
4 Summary Judgment. (Doc. No. 15). Plaintiff filed a Response (Doc. No. 17) and the
5 United States filed a Reply (Doc. No. 21). The court also granted Plaintiff leave to file
6 supplemental evidence in support of its Response. (Doc. Nos. 18; 19). The court considers
7 this matter now fully briefed and ripe for resolution.
8 LEGAL STANDARD
9 Rule 56 of the Federal Rules of Civil Procedure provides that “[a] party may move
10 for summary judgment, identifying each claim or defense—or the part of each claim or
11 defense—on which summary judgment is sought.” Fed. R. Civ. P. 56(a). “The court shall
12 grant summary judgment if the movant shows that there is no genuine dispute as to any
13 material fact and the movant is entitled to judgment as a matter of law.” Id.
14 Material facts are those that may affect the outcome of the case. See Anderson v.
15 Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is “genuine”
16 if the evidence is such that “a reasonable jury could return a verdict for the nonmoving
17 party.” See id. “[I]n ruling on a motion for summary judgment, the judge must view the
18 evidence presented through the prism of the substantive evidentiary burden.” Id. at
19 254. The question is “whether a jury could reasonably find either that the [moving party]
20 proved his case by the quality and quantity of evidence required by the governing law or
21 that he did not.” Id. (emphasis in original). “Credibility determinations, the weighing of
22 the evidence, and the drawing of legitimate inferences from the facts are jury functions,
23 not those of a judge.” Id. at 255. “[A]ll justifiable inferences are to be drawn in [the
24 nonmovant’s] favor.” Id.
25 The moving party “bears the initial responsibility of informing the district court of
26 the basis for its motion, and identifying those portions of the pleadings, depositions,
27 answers to interrogatories, and admissions on file, together with the affidavits, if any,
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1 which it believes demonstrate the absence of a genuine issue of material fact.” See Celotex
2 Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks omitted).
3 A party opposing a properly supported motion for summary judgment “may not rest
4 upon the mere allegations or denials of his pleading,” Liberty Lobby, 477 U.S. at 248, and
5 affidavits or declarations supporting his opposition “must be made on personal
6 knowledge,” Fed. R. Civ. P. 56(c)(4). The opposing party need not show the issue will be
7 resolved conclusively in its favor. See Liberty Lobby, 477 U.S. at 248–49. “[A]ll that is
8 required is that sufficient evidence supporting the claimed factual dispute be shown to
9 require a jury or judge to resolve the parties’ differing versions of the truth at trial.” Id. at
10 249. Summary judgment should, therefore, not be granted “where contradictory inferences
11 may reasonably be drawn from undisputed evidentiary facts.” Hollingsworth Solderless
12 Terminal Co. v. Turley, 622 F.2d 1324, 1335 (9th Cir. 1980).
13 ANALYSIS
14 I. Evidentiary Objections
15 At the outset, the court first addresses the objections Plaintiff lodged to evidence
16 submitted by the United States. Plaintiff objects to portions of a California Highway Patrol
17 report prepared by Officer E. Ketchum. (Doc. Nos. 15-4 at 9; 17-1 at 2). The report
18 contains a summary of what Plaintiff purportedly relayed to Officer Ketchum regarding
19 the collision. Id. Plaintiff contends this portion of Officer Ketchum’s report should be
20 excluded as hearsay. (Doc. No. 17-1 at 2).
21 Plaintiff’s objections are OVERRULED. “A police report, including the police
22 officer’s statements and observations, are admissible in civil cases under the public records
23 hearsay exception” of Rule 803(8). Thompson v. Polaris Indus., No. CV-16-02868-PHX-
24 DJH, 2019 U.S. Dist. LEXIS 83665, at *24 (D. Ariz. May 17, 2019); Blanton v. Cty. of
25 Sacramento, No. 2:09-cv-01832-MCE-CKD, 2012 U.S. Dist. LEXIS 94606, at *3 n.4
26 (E.D. Cal. July 6, 2012) (“The police officers’ statements and observations recorded in a
27 police report are admissible, as is the summary of [plaintiff’s] statement made to [the
28 officer] under the public-records hearsay exception.”).
1 The summary of Plaintiff’s statements, memorialized by Officer Ketchum, is also
2 admissible as a party-opponent admission under Rule 801(d)(2)(A). See Burton v. United
3 Servs. Auto. Ass’n, No. CV-22-00837-PHX-DWL, 2023 U.S. Dist. LEXIS 150285, at *14
4 (D. Ariz. Aug. 25, 2023) (“Plaintiff's statement to the officer falls outside the definition
5 of hearsay because it is a party-opponent admission under Rule 801(d)(2)(A) and
6 the police report memorializing the party-opponent admission qualifies as a public record
7 under Rule 803(8).”); see also Liberty Ins. Corp. v. Hohman, No. 2:21-cv-01622-GMN-
8 VCF, 2023 U.S. Dist. LEXIS 91622, at *10 (D. Nev. May 24, 2023); Thompson, 2019 U.S.
9 Dist. LEXIS 83665, at *25.
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I. Whether Plaintiff’s Negligence Claim is Barred by California’s Primary
11 Assumption of the Riskfpred Doctrine
12 The government argues the court should enter summary judgment in its favor on
13 Plaintiff’s negligence claim, arguing Plaintiff’s claim is barred by California’s primary
14 assumption of the risk doctrine. (Doc. No. 15 at 7–9). In response, Plaintiff contends the
15 assumption of the risk doctrine does not apply in this case because Plaintiff and Agent
16 Camacho were not co-participants in a recreational activity. (Doc. No. 17 at 13–17). In
17 the alternative, Plaintiff contends that even if Plaintiff and Agent Camacho were
18 co-participants in a recreational activity, the assumption of the risk doctrine would still not
19 apply because Agent Camacho’s conduct was reckless. Id. at 17–19. The court addresses
20 each of these arguments below.
21 A. Overview of Applicable Legal Principles
22 The court begins with an overview of the FTCA and California’s primary
23 assumption of risk doctrine.
24 1. The FTCA
25 “The United States can be sued only to the extent that it has waived its sovereign
26 immunity.” Conrad v. United States, 447 F.3d 760, 764 (9th Cir. 2006). The FTCA “grants
27 such a waiver.” Id.; see Colony First Fed. Sav. & Loan Asso. v. Fed. Sav. & Loan Ins.
28 Corp., 643 F. Supp. 410, 416 (C.D. Cal. 1986) (“The FTCA is a limited waiver of sovereign
1 immunity with respect to claims sounding in tort against the United States.”). “The FTCA
2 authorizes private tort actions against the United States ‘under circumstances where the
3 United States, if a private person, would be liable to the claimant in accordance with the
4 law of the place where the act or omission occurred.’” Jachetta v. United States, 653 F.3d
5 898, 904 (9th Cir. 2011) (quoting 28 USCS § 1346 (b)(1)). Accordingly, “the FTCA directs
6 [the court] to look to the law of the state in which the government official committed the
7 tort to determine the scope of sovereign immunity.” Schwarder v. United States, 974 F.2d
8 1118, 1122 (9th Cir. 1992). In this case, the applicable law is California law.
9 2. California’s Primary Assumption of Risk Doctrine
10 “The general rule in California is that ‘[e]veryone is responsible . . . for an injury
11 occasioned to another by his or her want of ordinary care or skill in the management of his
12 or her property or person[.]’” Cabral v. Ralphs Grocery Co., 51 Cal. 4th 764, 771 (2011)
13 (quoting CAL CIV CODE § 1714(a)). “In other words, each person has a duty to use ordinary
14 care and is liable for injuries caused by his failure to exercise reasonable care in the
15 circumstances[.]” Id. (internal quotation marks omitted).
16 “[I]n order to establish liability on a negligence theory [under California law], a
17 plaintiff must prove duty, breach, causation and damages.” Ortega v. Kmart Corp., 26 Cal.
18 4th 1200, 1205 (2001). “Primary assumption of the risk, as an exception to the general
19 duty of care rule, is a defense to negligence.” Estate of McNeil v. FreestyleMX.com, Inc.,
20 177 F. Supp. 3d 1260, 1268 (S.D. Cal. 2016); Childs v. Cty. of Santa Barbara, 115 Cal.
21 App. 4th 64, 69 (2004) (“The doctrine of ‘primary’ assumption of risk developed as an
22 exception to the general rule that all persons have a duty to use due care to avoid injury to
23 others.”).
24 The doctrine “articulates what kind of duty is owed and to whom.” Shin v. Ahn, 42
25 Cal. 4th 482, 499 (2007) (emphasis in original). “Primary assumption of the risk arises
26 when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from
27 particular harms.” Honeycutt v. Meridian Sports Club, LLC, 231 Cal. App. 4th 251, 257
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1 (2014). The doctrine “operates as a complete bar to recovery.” Branco v. Kearny Moto
2 Park, Inc., 37 Cal. App. 4th 184, 190 (1995).
3 B. Whether the Primary Assumption of Risk Doctrine Applies
4 The court next considers whether the primary assumption of risk doctrine applies in
5 this case. See Ford v. Polaris Indus., Inc., 139 Cal. App. 4th 755, 766 (2006) (“The
6 existence and scope of a defendant’s duty of care in the context of primary assumption of
7 the risk is a legal question to be decided by the court.”).
8 Under California law, “[t]he determination whether the defendant owes a legal duty
9 to protect the plaintiff from a particular risk of harm turns on the nature of the activity in
10 which the defendant is engaged and the relationship of the defendant and the plaintiff to
11 that activity.” Ford, 139 Cal. App. 4th at 767 (emphasis in original); Knight v. Jewett, 3
12 Cal. 4th 296, 309 (1992) (“[T]he question [of] whether the defendant owed a legal duty to
13 protect the plaintiff from a particular risk of harm does not turn on the reasonableness or
14 unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport
15 in which the defendant is engaged and the relationship of the defendant and the plaintiff to
16 that activity or sport.”).
17 1. Fundamental Nature of the Activity
18 With the above legal standard in mind, the court first looks to the “nature of the
19 activity” to which the Parties were engaged.
20 California courts have typically applied the primary assumption of the risk doctrine
21 in a sports setting, where the doctrine “precludes liability for injuries arising from those
22 risks deemed inherent in a sport.” Avila v. Citrus Cmty. Coll. Dist., 38 Cal. 4th 148, 161
23 (2006) (applying doctrine to baseball); see Cheong v. Antablin, 16 Cal. 4th 1063 (1997)
24 (applying doctrine to skiing); Fortier v. Los Rios Cmty. Coll. Dist., 45 Cal. App. 4th 430,
25 439 (1996) (applying doctrine to football); Regents of Univ. of Cal. v. Superior Court, 41
26 Cal. App. 4th 1040 (1996) (applying doctrine to rock climbing); Knight v. Jewett, 3 Cal.
27 4th 296 (1992) (applying doctrine to touch football); Stimson v. Carlson, 11 Cal. App. 4th
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1 1201 (1992) (applying doctrine to sailing); Galardi v. Seahorse Riding Club, 16 Cal. App.
2 4th 817 (1993) (applying doctrine to equestrian sport).
3 “When an inherent sports risk is involved, the defendant is liable only if he or she
4 intentionally injures another player or engages in conduct that is so reckless that it is totally
5 outside the range of the ordinary activity involved in an active sport.” Stimson, 11 Cal.
6 App. 4th at 1205. “By eliminating liability for unintended accidents, the doctrine ensures
7 that the fervor of athletic competition will not be chilled by the constant threat of litigation
8 from every misstep, sharp turn and sudden stop.” Id. at 1206.
9 This is not to say, however, that the doctrine applies only to competitive sports. See
10 Amezcua v. L.A. Harley-Davidson, Inc., 200 Cal. App. 4th 217, 229 (2011) (“[T]he
11 “primary assumption of risk doctrine is not limited to competitive sports[.]”). Instead,
12 California courts have also applied the doctrine to “recreational activities,” “if the activity
13 is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and
14 involves a challenge containing a potential risk of injury.” Record v. Reason, 73 Cal. App.
15 4th 472, 482 (1999); see also Summer J. v. United States Baseball Fed’n, 45 Cal. App. 5th
16 261, 269 n.7 (2020) (“[T]he primary assumption of risk doctrine is not limited to activities
17 classified as sports, but applies to any physical recreational activity that involves an
18 inherent risk of injury.”). Other California courts have extended the doctrine even further,
19 holding the doctrine “is not limited to recreational activities,” but applies to any activity
20 “involving an inherent risk of injury to voluntary participants . . . where the risk cannot be
21 eliminated without altering the fundamental nature of the activity.” Fazio v. Fairbanks
22 Ranch Country Club, 233 Cal. App. 4th 1053, 1059 (2015) (internal quotation marks
23 omitted).
24 Here, Plaintiff contends he was not engaged in an activity that would fall within the
25 primary assumption of risk doctrine, because he was using his dirt bike solely as a “means
26 of transportation” which is not “participation in a sport.” (Doc. No. 17 at 13–14). In
27 support of this argument, Plaintiff cites to the California Court of Appeal’s decision in
28 Childs v. Cty. of Santa Barbara, 115 Cal. App. 4th 64 (2004). Id.
1 In Childs, a minor plaintiff suffered a serious injury riding a scooter on the sidewalk
2 of a residential street. 115 Cal. App. 4th at 68. The court found the primary assumption
3 of risk doctrine did not apply in that case, because plaintiff was not “engaged in a sport or
4 sports-related recreational activity” covered by the doctrine. Id. at 70–71. In making this
5 decision, the court noted there was no evidence plaintiff was “riding at any particular speed,
6 or with other children in a structured or unstructured contest such as a race, or was testing
7 the limits of her ability or the scooter, or that she was attempting any trick or maneuver
8 requiring skill.” Id. at 71. Further, the court noted “the characteristics of the scooter show
9 that it was not a formidable means of transportation.” Id.
10 Here, like in Childs, Plaintiff “may have been engaged in no more than the diversion
11 of getting from one place to another.” Id. Riding a dirt bike to get from one place to
12 another is not sufficient, by itself, to trigger the doctrine. See e.g., Moser v. Ratinoff, 105
13 Cal. App. 4th 1211, 1221 (2003) (reasoning that “normal automobile driving” would not
14 be an activity covered by the primary assumption of risk doctrine, even though driving
15 “requires skill, can be done for enjoyment, and entails risks of injury.”).
16 Nevertheless, off-roading on a dirt bike on an unpaved dirt road in a recreational
17 manner—as Plaintiff may have elected to do in this case—involves physical exertion,
18 elements of skill, and a potential risk of injury that differ substantially from riding a child’s
19 scooter on the public sidewalk of a residential road. See Peart v. Ferro, 119 Cal. App. 4th
20 60, 75 n.6 (2004) (“Factually, the inherent risks of a child riding a scooter on a residential
21 sidewalk cannot be compared to those involved in [operating a personal watercraft].”).
22 There is a significant difference between traversing from one point to another at a
23 reasonable speed using a motorized bike as a means of transportation and the sport of off-
24 roading. Indeed, “[i]t cannot be seriously disputed that off-roading is an inherently
25 dangerous activity.” Mattle v. United States, No. CV 12-10157-JFW (FFMx), 2013 U.S.
26 Dist. LEXIS 190853, at *29 (C.D. Cal. Nov. 26, 2013); see e.g., Foltz v. Johnson, 16 Cal.
27 App. 5th 647, 657 (2017) (“Off-road riding involves the inherent risk that one will fall off
28 or be thrown from one’s bike.”); Garcia v. United States, No. CV 12-0942 PA (FMOx),
1 2013 U.S. Dist. LEXIS 191585, at *22 (C.D. Cal. Jan. 18, 2013) (“Driving at unsafe speeds,
2 becoming airborne, and collisions are inherent risks involved in off-roading.”); Distefano
3 v. Forester, 85 Cal. App. 4th 1249, 1264 (2001) (“[T]he sport of off-roading involves
4 inherent risks that the participants in this recreational activity may be involved in
5 inadvertent motor vehicle collisions and may suffer serious injury or death.”); see also,
6 e.g., Estate of McNeil v. FreestyleMX.com, Inc., 177 F. Supp. 3d 1260, 1269–70 (S.D. Cal.
7 2016) (applying primary assumption of risk doctrine to freestyle motorcross); Amezcua,
8 200 Cal. App. 4th at 231–32 (applying doctrine to “organized, noncompetitive, recreational
9 motorcycle riding.”).
10 With this difference in mind, the court notes there is evidence in the record
11 suggesting Plaintiff may have been off-roading on his KTM bike in a recreational manner
12 at the time of the collision. The record is replete with references illustrating Plaintiff
13 considered riding his KTM bike a recreational activity. Plaintiff testified he used his KTM
14 bike “exclusively for recreation.” (Doc. No. 15-2 at 31:22–24). Plaintiff characterized the
15 activity of “rid[ing] a motorcycle on a dirt path” as “[h]aving fun.” Id. at 19:11–14.
16 Plaintiff testified he purchased the Tierra Del Sol property in order to ride motorcycles on
17 dirt roads. Id. at 60:4–7. Plaintiff further testified he could have reached his destination
18 the day of the collision via a paved road in his car, but made the decision to drive off-road
19 on his bike instead. (Doc. No 17-7 at 44:2–7). More importantly, as the court sets forth in
20 detail below, there are genuine material factual disputes as to the speed and manner in
21 which Plaintiff was riding his bike. Infra at 13–15.
22 As in Childs, the question of whether the doctrine applies in this litigation depends
23 on various factors such as, the speed Plaintiff was riding, whether Plaintiff was testing the
24 limits of his KTM bike, or whether he was attempting any trick or maneuver requiring skill.
25 115 Cal. App. 4th at 71. In other words, Plaintiff may have elected in to participate in an
26 activity that possessed serious, inherent risks, including increased risks of accidents
27 including loss of control of the dirt bike and severe injuries in the event of an accident. See
28 Swigart v. Bruno, 13 Cal. App. 5th 529, 537 (2017) (“[P]rimary assumption of risk is a
1 defense that relieves a defendant of any duty to the plaintiff when the plaintiff is injured
2 due to a risk that is inherent in an activity in which the plaintiff chose to participate.”)
3 (emphasis added). On the limited record before it, however, the court cannot conclusively
4 determine whether Plaintiff was operating his KTM bike prudently solely as a matter of
5 conveyance or as a dirt bike in recreational mode.
6 2. Defendant’s Relationship to the Activity
7 The court next considers Defendant’s relationship to the activity at issue. In his
8 Opposition, Plaintiff contends the primary assumption of risk doctrine does not apply in
9 this case because Agent Camacho was not a co-participant in a recreational activity. (Doc.
10 No. 17 at 16–17). More specifically, Plaintiff contends Agent Camacho cannot be
11 considered a “co-participant” because he was not engaging in a recreational activity—but
12 was, instead, driving his work vehicle to his workstation. Id.
13 The court does not agree. The primary assumption of risk doctrine is more complex
14 than simply applying the doctrine “only and always when (i.e., because) the defendant is
15 a coparticipant in a sports activity[.]” Allan v. Snow Summit, Inc., 51 Cal. App. 4th 1358,
16 1368 (1996). This “simplistic reasoning is both logically and legally incorrect.” Id.
17 Indeed, California courts have applied the doctrine to delineate the duties of defendants
18 who are clearly not engaging in a recreational activity. See e.g., Nalwa v. Cedar Fair, L.P.,
19 55 Cal. 4th 1148, 1162–63 (applying doctrine to define duty of amusement park owner);
20 Lupash v. City of Seal Beach, 75 Cal. App. 4th 1428, 1436–39 (1999) (applying doctrine
21 to define duties of instructor to swimmer participating in junior lifeguard competition);
22 Aaris v. Las Virgenes Unified Sch. Dist., 64 Cal. App. 4th 1112, 1117 (1998) (rejecting
23 argument primary assumption of risk doctrine does not apply where negligence action was
24 brought against instructor or coach, as opposed to sports coparticipant).
25 The court notes, however, these cases have generally assumed a pre-existing or
26 special relationship between the parties at issue—e.g., instructor to student. As such, they
27 are not directly analogous to the instant one. Nevertheless, it is clear “[t]he relationship of
28 the parties to the activity and how that affects the duty of care will vary greatly depending
1 on the facts of any given case.” Mastro v. Petrick, 93 Cal. App. 4th 83, 90 n.4 (2001);
2 Peart v. Ferro, 119 Cal. App. 4th 60, 72 (2004) (“Duties with respect to the same risk may
3 vary depending on what role was played in the sporting activity by a particular defendant,
4 whether that role be as coparticipant, passive observer, instructor, coach, owner of the
5 venue in which the sport is played, or supplier of the equipment used in the sport.”).
6 The California Court of Appeal’s decision in Mastro v. Petrick, 93 Cal. App. 4th 83,
7 90 (2001) is instructive. Mastro involved the tort liability of a defendant snowboarder who
8 collided with plaintiff skier while both were descending the same mountainside. Id. at 85.
9 The Mastro court confronted the question of whether, under the primary assumption of risk
10 doctrine, defendant snowboarder owed any duty of care to plaintiff skier. Id. at 87–91.
11 The court found this question did not turn on whether plaintiff and defendant were labeled
12 as “co-participants” in the same sport. Id. at 89. It also did not turn on whether plaintiff
13 and defendant “were engaged in the same general activity or sport.” Id. Instead,
14 defendant’s duty of care depended on the risks inherent in the activity he was engaging in.
15 Id. at 90. The Mastro court found defendant owed no duty of care to plaintiff, but instead,
16 “should not be restrained or inhibited from vigorously engaging in his sport
17 (snowboarding) because of the presence of skiers on the same slope.” Id. at 91. “Put more
18 generally, one who is pursuing his sport in an appropriate venue owes no duty of care to
19 those who choose to occupy the same venue to engage in their (possibly different) activity
20 simultaneously.” Id. at 90.
21 Here it is indisputable that at the time of the collision, Agent Camacho was operating
22 a vehicle off-road on the G Road, not for recreation, but for work-related purposes. Given
23 the easement granted to the government, Agent Camacho was entitled to do so. Applying
24 the Mastro principles to this care, if the court were to conclude that Plaintiff was engaged
25 in the sport of off-roading at the time of the collision, looking to the nature of the activity
26 and Agent Camacho’s relationship to that activity (traversing, by automobile, the same
27 private road as Plaintiff), inadvertent collisions with other users of the road may occur. To
28 the extent Plaintiff may have been “assuming a risk” by engaging in the sport of off-roading
1 on a dirt road other third parties frequently used, he was assuming the risk of potentially
2 “occupying a venue with others that owe him no duty of care.” Id. at 90. However, if
3 Plaintiff and Agent Camacho were simply both traversing the same dirt road as “means of
4 transportation,” it would appear to the court that traditional negligence principles would,
5 instead, apply.
6 Nevertheless, as the court already noted above, the question of primary assumption
7 of the risk is fraught with many genuine issues of material fact—including how the accident
8 occurred—for the court to rule on the applicability of the doctrine at this point.
9 C. Whether Agent Camacho’s Conduct was Reckless
10 Plaintiff next contends that even if the primary assumption of risk doctrine applies,
11 there is a triable issue as to whether Agent Camacho’s conduct was reckless, thereby
12 putting Plaintiff’s claims outside the doctrine’s scope. (Doc. No. 17 at 17–19).
13 The primary assumption of risk doctrine “does not grant unbridled legal immunity
14 to all defendants participating in [an] activity.” Campbell v. Derylo, 75 Cal. App. 4th 823,
15 827 (1999). A defendant may still be found liable if “he intentionally injures the plaintiff
16 or engages in conduct so reckless as to be totally outside the range of the ordinary activity
17 involved in the sport or activity.” Saville v. Sierra Coll., 133 Cal. App. 4th 857, 866 (2005).
18 Reckless conduct, “unlike negligence, involves more than inadvertence, incompetence,
19 unskillfulness, or a failure to take precautions but rather rises to the level of a conscious
20 choice of a course of action with knowledge of the serious danger to others involved in it.”
21 Towns v. Davidson, 147 Cal. App. 4th 461, 470 (2007) (internal quotation marks omitted).
22 In determining whether there is a triable question as to whether Agent Camacho
23 acted recklessly, the court must consider a number of factors, including the nature of the
24 activity and the totality of circumstances surrounding Agent Camacho’s conduct and
25 Plaintiff’s injury. Shin, 42 Cal. 4th at 499. Here, however, the circumstances surrounding
26 the collision in this case are heavily disputed.
27 The Parties dispute where the collision occurred. According to Plaintiff, the
28 collision occurred as Agent Camacho was exiting the backside of a blind curve Plaintiff
1 had not yet entered. (Doc. No. 17-6 at 5). According to the government, the collision
2 occurred as Plaintiff was coming around a “semi blind corner.” (Doc. No. 15-3 at 1; 15-4
3 at 9).
4 There is also a dispute as to the speed Plaintiff and Agent Camacho were traveling
5 prior to colliding. The government contends Agent Camacho was traveling at
6 approximately fifteen miles per hour while Plaintiff was traveling at a “fast speed.” (Doc.
7 No. 15-3 at 1). In contrast, Plaintiff testified he was traveling approximately twenty miles
8 per hour, while Agent Camacho was traveling approximately twenty-five to thirty miles
9 per hour. (Doc. No. 15-4 at 9; 17-7 at 80:9–11, 17–19).
10 Additionally, there is some question as to whether Agent Camacho saw or
11 reasonably should have seen Plaintiff prior to the collision. Agent Camacho reported
12 Plaintiff had “just come around a couple of curves,” was “traveling downhill,” and “was
13 leaving wide swaths of tire sign behind him” prior to the accident. (Doc. No. 15-3 at 1).
14 Based on this report, Plaintiff contends as “motorcycles will leave clouds of dust following
15 their path of travel on dirt roads”—Agent Camacho should have seen Plaintiff or these dust
16 clouds at several points prior to colliding with him. (Doc. No. 17-6 at 7).
17 The Parties also dispute how the vehicles collided. According to the government,
18 Agent Camacho attempted to apply his brakes and swerve to the right upon seeing Plaintiff.
19 (Doc. Nos. 15 at 4; 15-3 at 1). At the same time, Plaintiff “made an abrupt turning
20 movement” causing him to overturn and slide with the KTM bike until crashing into the
21 front of Agent Camacho’s vehicle. (Doc. Nos. 15 at 4; 15-4 at 9). In contrast, Plaintiff
22 testified Agent Camacho did not brake prior to the collision and only turned slightly. (Doc.
23 No. 17-7 at 86:25–87:6). Plaintiff further submits evidence casting doubt as to whether the
24 KTM bike crashed into the front of Agent Camacho’s vehicle. (Doc. No. 17-6 at 6 (“A
25 physical inspection of the subject 2020 Chevrolet Tahoe shows no sign of contact to the
26 ‘front’ of the vehicle.”)).
27 Finally, the court considers Agent Camacho’s skill level. Shin, 42 Cal. 4th at 500.
28 Agent Camacho testified he had been trained on driving on dirt roads and was familiar with
1 and followed the rules of the California driver handbook and California basic speed law.
2 (Doc. No. 17-8 at 21:2–4; 30:20–33:5). Agent Camacho further testified he was familiar
3 with driving the G Road and familiar with its various “corners, turns, and twists” and had
4 encountered other vehicles on the road before. Id. at 62:11–63:2.
5 Despite the above, the government contends that even if all the above disputes were
6 resolved in Plaintiff’s favor, Agent Camacho’s behavior would still not constitute reckless
7 conduct. The court does not agree. Viewing the evidence in the light most favorable to
8 Plaintiff, a reasonable jury could infer Agent Camacho saw Plaintiff at several points prior
9 to the accident, made the decision to take a blind curve on the dirt road at twenty-five to
10 thirty miles per hour regardless, and did not brake prior to colliding with Plaintiff—despite
11 being both trained to drive on dirt roads and being familiar with the G Road. This is not a
12 case where the record is “devoid of evidence from which a jury rationally could conclude”
13 Agent Camacho’s conduct was “outside the range of ordinary activity inherent” in off-
14 roading. Szarowicz v. Birenbaum, 58 Cal. App. 5th 146, 169 (2020).
15 Rather, in light of the numerous factual disputes, the court finds the question of
16 whether Agent Camacho did, or did not, act recklessly is more appropriately “a question
17 the jury will ultimately resolve based on a more complete examination of the facts.” See
18 Shin, 42 Cal. 4th at 500; see also, e.g., Luna v. Vela, 169 Cal. App. 4th 102, 112 (2008)
19 (determining whether defendant breached limited duty not to increase risks inherent in
20 volleyball required “application of the governing standard of care (the duty not to increase
21 the risks inherent in the sport) to the facts of this particular case—the traditional role of
22 the trier of fact.”) (emphasis added). Because “triable issues of material fact” exist on the
23 question of whether Agent Camacho was acting recklessly, “the matter should be resolved
24 by the trier of fact, not the court as a matter of law.” Luna, 169 Cal. App. 4th at 114.
25 For the above reasons, the court DENIES the government’s motion for summary
26 judgment on Plaintiff’s negligence claim.
27 ///
28 ///
1 II. Whether Plaintiff’s Claim for Non-Economic Damages is Barred by California
Civil Code Section 3333.4
2
3 The government also moves for summary judgment on Plaintiff’s request for non-
4 economic damages, contending Plaintiff’s request is barred by California Civil Code
5 Section 3333.4. (Doc. No. 15 at 10–11).
6 California’s “Civil Code section 3333.4 was enacted through passage of Proposition
7 213 in the November 5, 1996 General Election.” Allen v. Sully-Miller Contracting Co., 28
8 Cal. 4th 222, 225 (2002). “Known as The Personal Responsibility Act of 1996, Proposition
9 213 sought to restrict the ability of uninsured motorists, convicted drunk drivers, and
10 convicted felons to recover for losses suffered in accidents.” Id. “The initiative sought to
11 ameliorate rising insurance premiums by encouraging uninsured motorists to obtain
12 insurance.” Chude v. Jack in the Box Inc., 185 Cal. App. 4th 37, 46 (2010).
13 California Civil Code Section 3333.4 states, in relevant part, that:
14 (a) [I]n any action to recover damages arising out of the operation
or use of a motor vehicle, a person shall not recover non-
15 economic losses to compensate for pain, suffering,
16 inconvenience, physical impairment, disfigurement, and other
nonpecuniary damages if any of the following applies:
17
18 . . .

19 (2) The injured person was the owner of a vehicle involved in the
20 accident and the vehicle was not insured as required by the
financial responsibility laws of this state.
21
California Civil Code Section 3333.4(a)(2).
22
Here, Plaintiff does not dispute he owned the KTM bike he was riding and that the
23
bike was uninsured at the time of the collision. (Doc. No. 15-2 at 24:1–11; 146:15–20).
24
Plaintiff instead contends California Civil Code Section 3333.4 does not apply because the
25
incident occurred on a private road. (Doc. No. 17 at 19–22). In response, the government
26
contends the G Road is subject to a permanent public easement and had been used openly
27
by members of the public for many years prior to the collision. (Doc. Nos. 15 at 10–11;
28
1 21 at 5–7). Conspicuously absent, however, is authority from either Party supporting
2 Plaintiff’s predicate position there exists a “private road” exception to California Civil
3 Code Section 3333.4.1
4 Absent any authority from the Parties, the court is unable to determine a basis for
5 the exception’s existence. First, Section 3333.4’s plain language does not distinguish
6 between private and public roads in precluding recovery for non-economic losses. To the
7 contrary, section 3333.4 explicitly states it applies “in any action to recover damages
8 arising out of the operation or use of a motor vehicle.” CAL CIV CODE § 3333.4(a)
9 (emphasis added). And “[a]s section 3333.4 is a remedial statute, it must be construed
10 broadly to [a]ffect its purposes.” Chude, 185 Cal. App. 4th at 46.
11 Secondly, the court looks to the California Supreme Court’s decision in Allen v.
12 Sully-Miller Contracting Co., 28 Cal. 4th 222 (2002). In Allen, “an uninsured [plaintiff]
13 motorcyclist was injured in a single-vehicle accident while turning across an unmarked
14 elevated ‘bus pad’ on a public roadway.” Id. at 225. Although the roadway was public, it
15 was undisputed a private company “retained responsibility” for providing traffic control
16 “which entailed the installation and maintenance of road barriers and delineators to warn
17 motorists and others of ditches and uneven road surfaces.” Id.
18 The Allen court addressed the question of: “whether section 3333.4 bars the
19 motorcyclist from recovering noneconomic losses in his premises liability action against
20 the private construction company that maintained control over the roadway at the time of
21 the accident.” Id. at 225. In so doing, the court found plaintiff’s action fell squarely within
22 California Civil Code Section 3333.4, holding there was “no evidence of legislative intent
23 supporting [plaintiff’s] proposal to carve out a private entity or private property exception
24 to section 3333.4’s application.” Id. at 230 (emphasis added).
25

26
27 1 The court reminds the Parties it is not the court’s job “to do the legal research that [the
Parties have] omitted.” Bretford Mfg. v. Smith Sys. Mfg. Corp., 419 F.3d 576, 581 (7th Cir.
28
1 Instead, as the court reasoned:
2
The statutory language [of California Civil Code Section 3333.4]
3 makes no distinction between public entity and private entity
4 defendants in precluding recovery for noneconomic losses. To
the contrary, section 3333.4 explicitly bars recovery of such
5 losses “in any action to recover damages arising out of the
6 operation or use of a motor vehicle” (id., subd. (a), italics added),
where the injured person was the owner of an uninsured vehicle
7 involved in the accident or was the vehicle operator and cannot
8 properly establish his or her financial responsibility (id., subd.
(a)(2), (3)).
9
10 Likewise, nothing in the legislative history of the provision, as
reflected in the ballot materials accompanying Proposition
11 213, suggests an intent to differentiate between public
12 defendants and private defendants, or between dangerous
conditions on public property and private property.
13
14 Id. (emphasis added); see Mosley v. Romero, 2021 Cal. Super. LEXIS 70573, *10
15 (applying section 3333.4 in accident involving uninsured motorist that took place in a
16 private parking lot); see also Valentich v. United States, 194 F. Supp. 3d 1033, 1038 (E.D.
17 Cal. 2016) (“In section 3333.4, the phrase ‘a motor vehicle’ includes all motor vehicles,
18 without distinguishing between those used off-road, on city streets, or on the highway.”)
19 (emphasis added).
20 As in Allen, plaintiff “seeks to hold another financially responsible for his economic
21 and noneconomic damages, even though he himself, as an uninsured motorist, could have
22 avoided financial responsibility for any damages had he caused an accident while on the
23 road.” 28 Cal. 4th at 230. Neither Party has provided any reason for why the above
24 conclusion would change based on the public or private character of the roadway in
25 question.
26 Finally, despite the government’s apparent concession, the court is unable to find
27 any legal authority for Plaintiff’s blanket statement motor vehicle insurance is not required
28 on private property. (Doc. No. 17 at 19). Instead, California’s “financial responsibility
1 || law is intended to ensure that the victims of negligent drivers are compensated not only for
2 || bodily injury and property damage occasioned by accidents occurring on public streets and
3 ||highways, but also for vehicular accidents resulting in damage to vehicles, buildings, or
4 other property located on public and private property off the streets and highways.” Day
5 City of Fontana, 25 Cal. 4th 268, 275 (2001) (internal quotation marks omitted)
6 || (emphasis added).
7 In sum, in the absence of any authority to the contrary, the court declines to carve
8 a “private road” exception to California Civil Code Section 3333.4. For these reasons,
9 || the court GRANTS the government’s motion for summary judgment on Plaintiff's request
10 || for non-economic damages.
11 CONCLUSION
12 For the reasons stated above, the court GRANTS-IN-PART and DENIES-IN-
13 || PART the United States’ Motion for Summary Judgment. Specifically:
14 1. The court DENIES the government’s motion for summary judgment on □□□□□□□□□□□
15 claim for negligence under California’s assumption of the risk doctrine; and
16 2. The court GRANTS the government’s motion for summary judgment on
17 || Plaintiff's entitlement to non-economic damages, as barred by California Civil Code
18 || Section 3333.4
19 IT IS SO ORDERED. %
20 || DATED: May 24, 2024 7.
1 JEF MI -ER
United States District Judge
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10640195. Public record. Not legal advice.