Daniel Kee-Young Kim, Jr. v. County of Monterey

A. The Raceway

The Laguna Seca Raceway (the Raceway) is a motor racing circuit2

located in

Salinas and owned by the County. The County and SCRAMP are parties to a concession

agreement under which they co-manage the Raceway. Pursuant to the concession

agreement, SCRAMP manages the Raceway’s day-to-day operations, and the County is

responsible for drainage issues.

A variety of bodies govern professional motor racing, including the Fédération

Internationale de Motocyclisme (FIM) and the Fédération Internationale de l’Automobile

(FIA). These bodies issue racing standards, such as the FIM Standards for Road Racing

Circuits (FIM Standards) and the FIA International Sporting Code (FIA Standards). In

2014, the Raceway obtained a license from FIM, which permitted the Raceway to hold

FIM-sanctioned, professional motorcycle racing events. Professional races are not held

at the Raceway during the winter, or “rainy season,” which lasts from October through

May.

The Raceway features a 2.238-mile, 11-turn race course, which includes the

asphalt-paved track, verges, and run-off areas. Verges and run-off areas are among the

1 We draw the facts recited here from the parties’ separate statements of

undisputed material facts, evidence admitted in conjunction with the motion for summary

judgment, and admissions in the parties’ appellate briefs. (See Thompson v. Ioane (2017)

11 Cal.App.5th 1180, 1186, fn. 4.)

2 When describing the physical layout of the Raceway, we use definitions taken

from industry standards, which define a “[c]ircuit” as “a closed course, permanent or

non-permanent, beginning and ending at the same point, built or adapted specifically for

automobile racing”; a “[c]ourse” as “a road or track, and the inherent installations, used

for automobile competitions”; and a “[t]rack” as “a road specially built or adapted to be

used for Circuit competitions” that “is defined by the outer edges of the racing surface.”

(FIA Standards at appen. O, art. 2.) “Verges” are the outer parts of the transversal profile

of the track”; and the “[r]un-off area is the ground between the verge and first line of

protective devices.” (FIM Standards at § 4.8.1.) We do not imply any specific legal

conclusions from the use of these definitions.

3

protective measures contemplated by the FIA and FIM to increase safety because these

areas permit a driver or rider to regain control or decelerate after making a mistake,

suffering a mechanical failure, or coming into contact with another driver or rider.

The FIM Standards state that “[v]erges should be completely flat without any kind

of obstruction,” and “[t]he transition from the verge to the run-off area should be very

smooth.” (FIM Standards at § 4.8.2.) The FIM Standards also provide that “[a]ll the

required drainage channels at the sides of the Race Track and between the verge and the

first line of protection should be installed in such a way that the covers do not represent

any step or bump for the motorbikes and riders that have lost the racing line: i.e. they

must be covered by a smooth metal wire mesh or an absorbent well must be used, in

order to maintain, without any interruption, the normal surface of the verge and/or of the

run-off area.” (FIM Standards at § 4.4.)

At the Raceway, drains and ditches appear at various points around the track,

either immediately adjacent to the track or within a three- to four-foot vicinity. A

third-party engineering firm, Whitson Engineering, was responsible for the design and

placement of the Raceway’s drains and ditches. Since approximately 1981, sandbags

have been placed at locations around and adjacent to the track during the rainy season.

For professional racing events at the Raceway, the sandbags are removed and the drains

and ditches are covered.

Organizations rent the Raceway for amateur events. A track renter has an

opportunity to inspect the track before an event to assess its safety. SCRAMP will

remove the sandbags if requested by a party renting the Raceway. Approximately two

organizations that have rented the track have requested that sandbags be removed at

certain areas of the Raceway before their events.

The Raceway has undergone significant changes over the past two decades to meet

evolving safety requirements by the FIM and other sanctioning bodies. At the time of

Kim’s accident (discussed further below), SCRAMP’s track rental supervisor was

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unfamiliar with FIM Standards and other equivalent standards for track safety. Neither

SCRAMP’s chief executive officer nor members of SCRAMP’s board of directors

possessed any experience or training on track safety. No one on SCRAMP’s board of

directors suggested ceasing track rentals during the winter months.

SCRAMP’s vice president for facilities operations, Bohdan Beresiwsky, was the

person responsible for safety at the Raceway. Beresiwsky’s training about track design

and safety involved “ ‘one or two seminars’ on ‘asphalt design.’ ” No one on

Beresiwsky’s staff possessed training in motorcycle safety, racetrack design, or drainage.

Without consulting track safety or design experts, Beresiwsky directed the

placement of sandbags—provided by the County—around the Raceway for erosion

control purposes. While Beresiwsky knew that the placement of sandbags in the safety

zone violated FIM Standards, he believed that FIM Standards did not apply to amateur

racing events. In the past, SCRAMP installed sandbags during the winter and then

removed them during the summer for the professional racing season. SCRAMP could

have installed a more permanent solution to drainage, such as a slotted or French drain

used at other racetracks.

Pursuant to the concession agreement, both the County and SCRAMP have a

“joint duty to operate and maintain . . . in good condition and repair,” “to a standard equal

to that performed by the [County’s] Parks Department,” designated joint areas of the

Raceway with the “proceeds of the track rental fund.” This joint duty to “maintain . . . in

good condition and repair” includes necessary grading of the “[t]rack run-off and

shoulders . . . to facilitate year-round track rental usage.” The County maintains

responsibility for drainage at the Raceway but defers to SCRAMP on track safety issues.

No one working for the County at the time of Kim’s accident possessed any expertise in

track safety.

In 2006, Mazda Motor of America, Inc. (Mazda), and SCRAMP entered into a

five-year, $7.5 million agreement (the 2006 Agreement) for title sponsorship of the

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Raceway. The agreement was renewed in 2012 (the 2012 Agreement). The 2012

Agreement obligated SCRAMP to spend “no less than” 70 percent, or $5.25 million, of

the sponsorship money for “capital improvements to the Laguna Seca racing facility,” to

“address safety issues,” and for “participant and facility improvements.”

B. Kim’s Accident

On March 14, 2015,

3 Kim attended a “track day” event at the Raceway hosted by

an organization called Keigwins@TheTrack (Keigwins) that had rented the Raceway for

March 14 and 15. Kim had previously participated in other track days at the Raceway.

At a track day, clubs, enthusiast groups, and individuals rent the Raceway to drive their

automobiles or motorcycles around the circuit. A track day is not a professional-level

race, but riders at these events may travel at speeds of up to 140 miles per hour. Kim

signed a waiver and release prior to participating in the March 14 track day event.

Keigwins did not ask SCRAMP to remove any of the sandbags from the Raceway

for the March track day event and generally deferred to SCRAMP regarding safety

issues. Keigwins’s employees did not inspect the Raceway before the event.

Keigwins instructed track day participants to “ ‘ride into the run off’ ” and to

“ ‘stay off the brakes’ ” if they “ ‘get into the dirt.’ ” It was foreseeable that track day

participants would lose control of their motorcycles and enter the safety zone. However,

none of the participants were warned about the rows of unmarked, burlap-colored

sandbags (which were dirty and generally the same color as the ground) placed around

the race course, including in the safety zones.

During the March 14 track day event, Kim rode his motorcycle for 10 to 15 laps

before he “ ‘ran wide’ ” at turn 5. At that turn, Kim rode into the safety zone and collided

with one or more sandbags placed near the track. Kim was ejected from his motorcycle

and suffered serious injuries.

3 All dates are in 2015 unless otherwise stated.

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C. Kim’s Complaint

Based on the injuries he sustained at the March 14 track day event, Kim presented

a claim for damages to the County. Following the County’s rejection of Kim’s claim, he

filed suit against the County, SCRAMP, the Raceway’s then-title sponsor Mazda, and the

track day event sponsor, Keigwins (collectively, defendants).

4 As relevant to this appeal,

Kim’s complaint5

alleged in the first cause of action a claim against the County for

dangerous condition of public property (Gov. Code, § 835)6

and in the second cause of

action a claim against SCRAMP for gross negligence.7

Kim’s complaint alleged “the sandbags on the track run-off created a dangerous

condition on public property. These unmarked sandbags—placed in an intended safety

zone—substantially increased the risk of injury beyond those inherent to motorcycle

racing. This dangerous condition created a reasonably foreseeable risk that riders, such

as [Kim], would enter the run-off, crash into the sandbags, and suffer significant injuries.

In creating this dangerous condition, or being aware of it and failing to warn or repair or

protect or safeguard [Kim] despite ample time to do so, [d]efendants were grossly

negligent.” Kim also alleged that on March 14 the “weather at the Raceway was warm,

4 Neither Keigwins nor Mazda is a party to this appeal.

5 The operative complaint is Kim’s first amended complaint (complaint).

6 Unspecified statutory references are to the Government Code.

7 Although Kim’s complaint asserted that the second cause of action for gross

negligence was against “[a]ll [d]efendants,” we construe Kim’s gross negligence claim

against the County as pleading an exception to the County’s anticipated assertion of an

affirmative defense to Kim’s dangerous condition claim in the first cause of action. “[A]

public entity is not liable for an injury ‘[e]xcept as otherwise provided by statute . . .’

(Gov. Code, § 815.)” (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127.)

The statute under which Kim alleged the County was liable (asserted in the first cause of

action) was section 835, which in turn is subject to the affirmative defense that “[n]either

a public entity nor a public employee is liable to any person who participates in a

hazardous recreational activity” (§ 831.7, subd. (a)); except for “liability that would

otherwise exist for . . . [¶] [a]n act of gross negligence by a public entity or a public

employee that is the proximate cause of the injury.” (§ 831.7, subd. (c)(1)(E).) The

parties do not dispute that amateur motorcycle racing is a hazardous recreational activity.

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sunny, and dry, as it had been for at least a week,” that respondents postponed safety

upgrades to the Raceway, and that “SCRAMP diverted funds from track sponsorships to

operating or debt expenses rather than funding track improvements.”

Kim’s complaint alleged in the first cause of action that the County had a “duty to

exercise reasonable care in the ownership, operation, management, construction, and/or

maintenance of the Raceway” so as to not create a dangerous condition, as well as a

“duty to not increase the risks inherent to motorcycle racing on the Raceway.” Kim

further alleged that the placement of the sandbags caused a dangerous condition on public

property and the County created this dangerous condition through its “grossly negligent

conduct, wrongful act, or omission, and/or had constructive notice of the dangerous

condition prior to [Kim’s March 14 accident], with sufficient time to have taken measures

to protect against the dangerous condition.”

Additionally, Kim alleged that defendants “violated international and American

safety standards governing racetrack design by obstructing the Turn 5 track run-off with

sandbags.” A “reasonable entity” would have removed the sandbags prior to the March

14 track day “to avoid creating substantial risk of injury and a dangerous condition on

public property,” and “[d]efendants’ lack of any care and/or extreme departure from the

existing standard of care elevates their wrongful conduct to the level of gross

negligence.”

In the second cause of action for gross negligence, Kim’s complaint made

allegations substantially similar to those in the first cause of action. Both claims asserted

defendants’ liability based on alternative theories of misfeasance (by creating the risk)

and nonfeasance (by failing to warn of the risk). In anticipation of defendants’

affirmative defenses based on the written release and on the doctrine of assumption of

risk, Kim asserted that defendants were nevertheless liable “on account of their gross

negligence to Plaintiff, which substantially increased the risk of injury beyond those

inherent to motorcycle racing on the Raceway.”

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D. Summary Judgment Proceedings

Defendants filed a number of motions to strike and for judicial notice. The trial

court granted defendants’ motion to strike Kim’s claim for punitive damages and took

judicial notice of the FIA Standards but denied the remaining motions to strike and

requests for judicial notice. Defendants moved for summary judgment, which Kim

opposed.

In support of his opposition, Kim presented an expert witness declaration from

Robert Barnard, a motorsport consultant with track safety expertise. Barnard’s

declaration opined that SCRAMP’s staff “have knowingly placed obstacles in the run-off

areas, and worse, in the verge, which is a key area where a rider or driver should be able

to maintain control after a small mistake. Instead of finding a safe solution to drainage

problems, SCRAMP has spent time and money installing and removing sandbags and

opening and closing drains and ditches. Despite clear indications from FIM that such

obstacles are not allowed, no one has questioned this decision or sought expert advice,

showing an utter disregard for rider safety. In [Barnard’s] professional opinion,

SCRAMP’s operation of the [Raceway] was greatly below the standard of care expected

in the industry.”

8

Respondents presented no rebuttal expert witness testimony and no evidence that

the presence of sandbags near the track was a risk inherent to amateur motorcycle track

racing.

The trial court ultimately granted summary judgment to all defendants except for

Keigwins, finding triable issues of fact regarding whether Keigwins’s failure to request

8 Respondents did not object to these statements in the Barnard declaration.

9

that the sandbags be removed and failure to discontinue the track day amounted to gross

negligence.9

In the summary judgment proceedings, respondents filed a number of evidentiary

objections to Barnard’s declaration but did not challenge his qualification as an expert on

motorsport safety and practices. The trial court’s summary judgment order did not

expressly rule on any specific objection. Instead, the order states that “Barnard’s

declaration is replete with statements lacking foundation . . . argument, rhetoric and

statements outside the scope of admissible opinion,” but the order also relies on facts

drawn from the Barnard declaration in concluding that Keigwins’s motion for summary

judgment should be denied.

On appeal, Kim does not challenge the trial court’s evidentiary rulings, and we

therefore do not review them here.10

Although the trial court’s order does not clarify

which statements from the Barnard declaration it found inadmissible, we assume that the

trial court sustained respondents’ objections and consider only those portions of

Barnard’s declaration to which respondents raised no objection in the trial court.

II. DISCUSSION

Kim appeals the trial court’s grant of summary judgment to the County and

SCRAMP, contending there are triable issues of material fact as to both causes of action.

Specifically, Kim argues there are triable issues whether SCRAMP increased the risk of

injury by using a “haphazard drainage control plan that included the placement of

9 Keigwins, which is not a party to this appeal, subsequently filed in this court a

petition for writ of mandate, or alternatively, for prohibition, directing the trial court to

vacate its order denying Keigwins’s motion for summary judgment and to enter a new

order granting summary judgment. Keigwins also requested a stay pending writ review.

This court denied Keigwins’s petition and stay request.

10 As Kim has not in this appeal challenged the trial court’s evidentiary rulings, we

need not address respondents’ contention that this court misinterpreted Reid v. Google,

Inc. (2010) 50 Cal.4th 512 in its decision in Pipitone v. Williams (2016) 244 Cal.App.4th

1437, 1451 (concluding an appellate court should review de novo a trial court’s

evidentiary rulings on a summary judgment motion).

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sandbag obstacles—indistinguishable from the surrounding dirt at riding speeds—in a

line perpendicular across the safety zone of the Raceway.” Kim argues SCRAMP’s

conduct was grossly negligent in placing the sandbags, in not highlighting their presence

with safety cones or other physical alterations to the track, and in failing to warn track

renters and riders about their presence near the track. Kim asserts there are also triable

issues as to the County’s gross negligence in that it was primarily responsible for

“drainage issues at the Raceway during the winter season,” and it made no effort to

determine whether the drainage plan implemented by SCRAMP (which included the

placements of the sandbags) complied with standards for track safety.

Respondents counter that erosion during the rainy season undisputedly poses a

serious safety hazard to persons using the Raceway and that Kim “introduced no

evidence to show that respondents’ drainage system fails to reduce the risk of harm from

erosion” and “submitted no proof that the drainage system’s design is unreasonable, let

alone so unreasonable as to amount to a want of even scant care.” Respondents argue

that alternatives to the sandbags such as French or slotted drains are not “practically or

financially feasible” and that Kim failed to show that marking sandbags with safety cones

“would increase safety to any substantial degree.” SCRAMP and the County also assert

that Kim cannot show gross negligence as a matter of law because Kim failed to “first

show there [was] an established industry standard applicable to the defendant’s conduct.”

A. Summary Judgment Standards

“[G]enerally, from commencement to conclusion, the party moving for summary

judgment bears the burden of persuasion that there is no triable issue of material fact and

that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 850.) “A defendant moving for summary judgment has the

burden of showing that a cause of action lacks merit because one or more elements of the

cause of action cannot be established or there is a complete defense to that cause of

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action.” (Genisman v. Carley (2018) 29 Cal.App.5th 45, 49, quoting Jones v. Wachovia

Bank (2014) 230 Cal.App.4th 935, 945.)

On appeal from an order granting summary judgment, “ ‘ “we take the facts from

the record that was before the trial court when it ruled on that motion. [Citation.] ‘ “We

review the trial court’s decision de novo, considering all the evidence set forth in the

moving and opposing papers except that to which objections were made and sustained.” ’

[Citation.] We liberally construe the evidence in support of the party opposing summary

judgment and resolve doubts concerning the evidence in favor of that party.” ’ ”

(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347.)

“In performing an independent review of the granting of summary judgment, we

conduct the same procedure employed by the trial court. We examine (1) the pleadings

to determine the elements of the claim, (2) the motion to determine if it establishes facts

justifying judgment in the moving party’s favor, and (3) the opposition—assuming

movant has met its initial burden—to ‘decide whether the opposing party has

demonstrated the existence of a triable, material fact issue.’ ” (Oakland Raiders v.

National Football League (2005) 131 Cal.App.4th 621, 630.) We review the trial court’s

ruling and not its rationale. (Ibid.)

B. Legal Elements of Kim’s Claims

Kim’s first cause of action alleges a dangerous condition of public property.

(§ 835.) His second cause of action alleges gross negligence.

To establish public entity liability for an injury caused by a dangerous condition of

its property, section 835 “ ‘requires a plaintiff to prove, among other things, that either of

two conditions is true: “(a) A negligent or wrongful act or omission of an employee of

the public entity within the scope of his employment created the dangerous condition or

[¶] (b) The public entity had actual or constructive notice of the dangerous condition

12

under Section 835.2[11]

a sufficient time prior to the injury to have taken measures to

protect against the dangerous condition.” ’ ” (Metcalf v. County of San Joaquin (2008)

42 Cal.4th 1121, 1130 (Metcalf).) We determine section 835 liability using ordinary

negligence principles. (Id. at p. 1139.)

If a defendant affirmatively demonstrates as a matter of law that a plaintiff cannot

establish breach amounting to ordinary negligence, then it follows that a claim for gross

negligence likewise fails. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 32

(Hass).) Therefore, we first examine both of Kim’s causes of action under the principles

of ordinary negligence and then discuss principles related to gross negligence.

“The elements of a cause of action for negligence are (1) the existence of a legal

duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of

the plaintiff’s injury.” (Federico v. Superior Court (1997) 59 Cal.App.4th 1207,

1210–1211.) As none of the parties on appeal meaningfully addresses the elements of

causation and injury, we confine our analysis to the issues of duty and breach.

1. Duty and Assumption of Risk

“Generally, one owes a duty of ordinary care not to cause an unreasonable risk of

harm to others. (Civ. Code, § 1714, subd. (a); [citation].) The existence of a duty is not

an immutable fact of nature, but rather an expression of policy considerations providing

legal protection. [Citation.] Thus, the existence and scope of a defendant’s duty is a

question for the court’s resolution. [Citation.] When a sports participant is injured, the

11 Section 835.2 provides in relevant part: “(a) A public entity had actual notice of

a dangerous condition within the meaning of subdivision (b) of Section 835 if it had

actual knowledge of the existence of the condition and knew or should have known of its

dangerous character. [¶] (b) A public entity had constructive notice of a dangerous

condition within the meaning of subdivision (b) of Section 835 only if the plaintiff

establishes that the condition had existed for such a period of time and was of such an

obvious nature that the public entity, in the exercise of due care, should have discovered

the condition and its dangerous character.”

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considerations of policy and duty necessarily become intertwined with the question of

whether the injured person can be said to have assumed the risk.” (Shin v. Ahn (2007) 42

Cal.4th 482, 488–489 (Shin).)

Kim’s complaint concedes some departure from the ordinary duty of care is

warranted because he was engaged in an activity involving inherent risk and thus

assumed those inherent risks under the primary assumption of risk doctrine.12

“Under the

primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff

from particular harms arising from ordinary, or simple negligence.” (Shin, supra, 42

Cal.4th at p. 489, italics omitted.)

In the sporting context, the primary assumption of risk doctrine “precludes liability

for injuries arising from those risks deemed inherent in a sport; as a matter of law, others

have no legal duty to eliminate those risks or otherwise protect a sports participant from

them.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) An

express agreement releasing future liability for negligence, such as the one Kim signed,

can also “ ‘be viewed as analogous to primary assumption of risk.’ ” (City of Santa

Barbara v. Superior Court (2007) 41 Cal.4th 747, 779, fn. 57 (City of Santa Barbara).)

“[A] purveyor of recreational activities owes a duty to a patron not to increase the

risks inherent in the activity in which the patron has paid to engage.” (Parsons v. Crown

Disposal Co. (1997) 15 Cal.4th 456, 482.) Determining the scope of respondents’ duty to

Kim requires considering whether his injuries resulted from a risk inherent to amateur

12 The primary assumption of risk defense is available to the County through

section 831.7. (See fn. 7, ante.) While assumption of risk is technically an affirmative

defense, we discuss it here because, if it applies, “ ‘ “ ‘the defendant is relieved of legal

duty to the plaintiff; and being under no duty, he cannot be charged with

negligence.’ ” ’ ” (Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25

Cal.App.5th 344, 357.)

14

motorcycle track racing and, if the risks are inherent, whether he alleges respondents did

anything to increase them.13



“In the sports setting . . . conditions or conduct that otherwise might be viewed as

dangerous often are an integral part of the sport itself. Thus, although moguls on a ski

run pose a risk of harm to skiers that might not exist were these configurations removed,

the challenge and risks posed by the moguls are part of the sport of skiing, and a ski

resort has no duty to eliminate them.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315

(Knight).)14

Nevertheless, defendants “do have a duty to use due care not to increase the

risks to a participant over and above those inherent in the sport. Thus, although a ski

resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due

care to maintain its towropes in a safe, working condition so as not to expose skiers to an

increased risk of harm.” (Id. at p. 316, italics added.)

“[T]he nature of a sport is highly relevant in defining the duty of care owed by

the particular defendant.” (Knight, supra, 3 Cal.4th at p. 315.) “For example, one must

ride a horse in dressage, barrel racing and the Kentucky Derby, and falling off of a horse

is an inherent risk of horseback riding. But if a person put a barrel in the middle of the

Churchill Downs racetrack, causing a collision and fall, we would not say that person

owed no duty to the injured riders, because falling is an inherent risk of horseback

riding.” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 365.) “While the

operator or organizer of a recreational activity has no duty to decrease risks inherent to

the sport, it does have a duty to reasonably minimize extrinsic risks so as not to

13 We recognize that a “track day” is not technically a racing event. However,

given that it is uncontested that the riders would ride at speeds of up to 140 miles per

hour at these events, we refer to the sport generally as amateur motorcycle track racing.

In using this phrase, we do not draw any legal conclusions about whether professional

standards, such as those promulgated by the FIM or FIA, govern the activity.

14 Although only three justices signed on to the lead opinion in Knight, the

California Supreme Court has subsequently described its basic principles as the

“controlling law.” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067.)

15

unreasonably expose participants to an increased risk of harm.” (Hass, supra, 26

Cal.App.5th at p. 38.)

In their briefing respondents focus on the “risk of harm from erosion,” but that is

not the proper formulation of the duty of care here. Instead, the relevant duty of care is a

duty not to increase the risks to a participant over and above those inherent in the sport.

Kim’s complaint alleged that the presence of unmarked sandbags near the track

“substantially increased the risk of injury[ ] beyond those inherent to motorcycle racing,”

and both the County and SCRAMP were responsible for the presence of the sandbags.

The County and SCRAMP did not introduce any evidence that the presence of sandbags

is an inherent risk of amateur motorcycle track racing, and common sense does not

suggest any inherent relationship between the sport and sandbags.

We conclude that Kim’s complaint adequately alleged that the presence of

sandbags on or near a track is not an inherent risk of amateur motorcycle track racing,

and that respondents did not carry their burden as the moving party on summary

judgment of producing evidence that it was. (See Eriksson v. Nunnink (2011) 191

Cal.App.4th 826, 849; cf. Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC

(2018) 25 Cal.App.5th 344, 362 (Willhide-Michiulis) [concluding summary judgment

was properly granted where a snowboarder suffered injuries after colliding with a

snowcat where the undisputed evidence demonstrated “the use of snowcats and their

tillers on ski runs during business hours is inherent to the sport of snowboarding”].)

Therefore, the County and SCRAMP failed to show that they were entitled to a

grant of summary judgment on the ground that they did not owe a duty of due care to

Kim in the use of sandbags at the Raceway. We turn next to whether there is a material

issue of disputed fact as to whether the County or SCRAMP breached that duty of due

care.

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2. Breach

There is a “crucial distinction” between a court’s role in determining that no duty

was owed from a “broad level of factual generality” (i.e., “the category of negligent

conduct at issue”) (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 772) and the

jury’s role in answering the “fact-specific question of whether or not the defendant acted

reasonably under the circumstances.” (Id. at p. 774.) Resolving whether respondents

breached their duty to Kim “requires application of the governing standard of care (the

duty not to increase the risks inherent in the sport) to the facts of this particular case—the

traditional role of the trier of fact.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112.) A

defendant moving for summary judgment in the assumed risk context must show, as a

matter of law, that it did not unreasonably increase risks to the plaintiff over and above

those inherent in the activity. (Fazio v. Fairbanks Ranch Country Club (2015) 233

Cal.App.4th 1053, 1060.)

“ ‘Gross negligence’ long has been defined in California . . . as either a ‘want of

even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ ” (City

of Santa Barbara, supra, 41 Cal.4th at p. 754.) “ ‘Generally it is a triable issue of fact

whether there has been such a lack of care as to constitute gross negligence [citation] but

not always.’ ” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640.)

Having reviewed the evidence in the record, we conclude that there are a number of

triable issues of material fact as to whether respondents breached their duty of care to

Kim in a manner amounting to gross negligence.

Through the Barnard declaration, Kim introduced evidence (in the words of the

trial court) that “failure to keep both areas [Barnard] labels a ‘verge’ and a ‘runoff,’

respectively, free of obstructions violates the basic safety standards of the industry.”

Respondents do not appear to contest that sandbags qualify as an “obstruction.”

Nevertheless, respondents contend that the sandbags are not hidden, are generally

visible, and have been used for more than three decades to control erosion and water

17

during the rainy season. Respondents argue that these efforts helped to increase track

safety by keeping water, mud, and other debris off the asphalt surfaces and by preventing

the rain from carving erosion channels in the soil. Kim, in turn, relying on Barnard’s

declaration, argues that respondents should have engaged in alternative methods of

drainage control (such as installing a permanent slotted drain), removed the sandbags

before the track day event, used cones or distinctive markings to make the sandbags more

visible, or warned track day riders about the sandbags.

Respondents’ arguments here that they did not breach the duty of care amounting

to gross negligence depend on contested facts, including the number, location, visibility,

and cost of removal of the sandbags. Under these circumstances, respondents are not

entitled to summary judgment on the question of breach.

Respondents also argue that summary judgment was properly granted because

Kim failed to show that slotted or French drains were “practically or financially feasible

as a means of avoiding hazardous erosion at the Raceway.” However, the record reflects

no evidence, much less undisputed evidence, that respondents were entitled to summary

adjudication on this issue. Respondents concede as much in their briefing by relying on

“[c]ommon sense” for the proposition that “neither of Barnard’s proposed alternatives is

practical at the Raceway or financially feasible,” rather than on any facts in the record

before the trial court.

The defendant raised similar arguments in Ducey v. Argo Sales Co. (1979) 25

Cal.3d 707 (Ducey), a case involving the state’s liability “for an injury assertedly caused

by the state’s failure to place median barriers on a highway.” (Metcalf, supra, 42 Cal.4th

at p. 1139 [discussing Ducey].) Like respondents here, the state in Ducey contended “that

as a matter of financial reality it [could] not afford to construct median barriers on all

freeways on which such barriers are needed” (Ducey, at p. 720) and introduced evidence

that that the State Highway Commission had appropriated funds for median barriers, but

subsequently withdrew the appropriation because it planned to widen and otherwise

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change the configuration of the highway. (Id. at pp. 713–714.) Given this economic

evidence, the state argued “as a matter of policy, [it should be relieved] of liability

resulting from its failure to install such barriers.” (Id. at p. 720.)

The California Supreme Court rejected the state’s contention. The court

concluded that summary judgment should not have been granted because “the

reasonableness of the state’s action in light of the practicability and cost of the applicable

safeguards [were] matter[s] for the jury’s determination.” (Ducey, supra, 25 Cal.3d at

p. 720.) We reach the same conclusion here.

There are additional triable issues whether respondents’ conduct amounted to

gross negligence. It is undisputed that FIA and FIM Standards prohibit the placement of

sandbags or other obstacles in those very areas for safety reasons, although the parties

dispute the extent to which these standards are relevant to the track day event, an issue

we address further below. Nevertheless, a reasonable fact finder could determine that the

use of sandbags was a severe departure from the “first-class manner” that SCRAMP was

contractually obligated to operate the Raceway.

Similarly, a reasonable fact finder could conclude that, because local climate

conditions made erosion a foregone conclusion at the Raceway and in light of the $5.25

million Mazda sponsorship revenue contractually-designated for “capital improvements,”

it was grossly negligent for SCRAMP to “divert[ ]” this money to its operations instead

of creating a permanent erosion control solution. Furthermore, a reasonable fact finder

could determine that respondents were grossly negligent for relying entirely on the

assessments of a SCRAMP executive with virtually no track safety training to devise a

reasonably safe solution to the problem of erosion while not increasing the risks inherent

to amateur motorcycle track racing.

Respondents’ contention that they did not breach any duty of care because it was

the track renter’s obligation to request removal of the sandbags itself raises triable issues

as to whether their conduct was grossly negligent. The undisputed evidence is that very

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few track renters request removal of the sandbags; therefore, respondents knew to a near

certainty that such a request would likely not be made. A reasonable jury could find this

knowledge—to which only respondents were privy—as indicative of a higher degree of

breach amounting to gross negligence.

We briefly address two additional issues raised by the parties.

First, the parties vigorously dispute whether certain professional standards apply

to the track day event at issue here. Respondents contend that the FIM Standards do not

apply to amateur events, while Kim argues that they were applicable to the March 14

track day event either under the terms of the FIM license or because the Raceway

promoted itself as a “world-class” motor racing venue. We find it unnecessary to resolve

this dispute in order to conclude that the trial court erred in granting summary judgment

to respondents.

Respondents contend that, to show gross negligence, Kim “must first show there is

an established industry standard applicable to the defendant’s conduct.” In support of

this assertion, respondents cite Anderson v. Fitness Internat., LLC (2016) 4 Cal.App.5th

867 (Anderson), a case involving a plaintiff who suffered injuries after slipping on the

floor in a health club shower. The Anderson court reviewed cases addressing gross

negligence and summarized the relevant principle: “conduct that substantially or

unreasonably increased the inherent risk of an activity or actively concealed a known risk

could amount to gross negligence.” (Id. at p. 881.) For the reasons stated above, we have

concluded a reasonable fact finder could determine the evidence here satisfies this test.

While the court in Anderson also noted “[e]vidence of conduct that evinces an

extreme departure from manufacturer’s safety directions or an industry standard also

could demonstrate gross negligence” (Anderson, supra, 4 Cal.App.5th at p. 881), it did

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not hold that a plaintiff is required to establish an industry standard as a matter of law to

defeat a motion for summary judgment.15



We conclude that the applicability of the professional racing standards is not

dispositive to whether summary judgment should have been granted. Even if the FIA and

FIM Standards did not apply to an amateur track day event (an issue we do not resolve

here), a fact finder could still consider them, as well as Barnard’s expert opinion

regarding industry practices, informative on the question of breach.

A fact finder could reasonably accept these standards and practices to be useful in

determining the importance of keeping the track and safety zones clear of obstructions,

such as sandbags, and how reasonable or unreasonable it was for respondents to keep

them in place in periods where there had been no rain (as Kim alleged to be the case on

March 14). A fact finder could also reasonably infer that, although a track day event was

not a professional-level endeavor, if the presence of obstructions in the run-off area was

unacceptable for professional (and presumably more skilled) motorcycle riders, then their

presence would be unacceptable for amateur riders. Alternatively, a fact finder could be

persuaded by respondents’ evidence that another racing circuit also deploys sandbags in

the outfield areas adjacent to the track surface for erosion control.

15 In concluding that the trial court properly granted the defendant’s motion for

summary judgment on a claim for gross negligence, the court in Anderson observed the

plaintiff did “not allege facts demonstrating that L.A. Fitness engaged in any conduct to

actively increase the risk inherent [to] its shower facility.” (Anderson, supra, 4

Cal.App.5th at p. 882.) Here, by contrast, Kim alleged that respondents’ placement of

sandbags near the track did increase the risk inherent in amateur motorcycle track racing.

Respondents’ reliance on Willhide-Michiulis is similarly misplaced. In affirming the

grant of summary judgment, the Willhide-Michiulis court found it significant that the

plaintiff “presented no expert evidence regarding the safety standards applicable to

snowcat drivers.” (Willhide-Michiulis, supra, 25 Cal.App.5th at p. 366.) Here, Kim’s

expert Barnard opined that respondents’ placement of obstructions in the run-off area fell

“greatly below the standard of care expected in the industry.” As respondents concede,

the trial court deemed admissible Barnard’s opinion that the verges and run-off must be

kept free of obstructions and that failure to do so violates basic industry safety standards.

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We do not suggest the weight the fact finder should give to this evidence; we

observe merely that these questions, which involve contested issues of material fact going

to whether respondents breached their duty in a manner amounting to gross negligence,

are for the jury—and not the court—to resolve.

Second, the parties devote considerable attention to the issue of whether there

have been any prior accidents involving sandbags at the Raceway. Respondents state that

the “paucity of accidents” from the use of sandbags for the past 35 years should be

dispositive on the issue of breach. Kim, in turn, requests that we take judicial notice of

evidence of at least one prior accident at the Raceway involving a sandbag.

Turning to respondents’ contention first, while the number of prior accidents will

likely be a relevant consideration for the fact finder at trial, it does not establish as a

matter of law that respondents did not breach the duty of due care they owed Kim. Under

the circumstances of this case, whether the “paucity of accidents” is “attributable to luck

rather than expertise” necessarily involves factual inferences that are reserved for a jury.

(Hass, supra, 26 Cal.App.5th at p. 34, fn. 6.)

In light of this conclusion, we deny Kim’s request for judicial notice and have not

considered the proffered documents in reaching our disposition. “Reviewing courts

generally do not take judicial notice of evidence not presented to the trial court. Rather,

normally ‘when reviewing the correctness of a trial court’s judgment, an appellate court

will consider only matters which were part of the record at the time the judgment was

entered.’ ” (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444,

fn. 3.) We conclude that no exceptional circumstances exist in this case that would

justify deviating from this principle.

In sum, because triable issues exist as to whether SCRAMP’s and the County’s

conduct was grossly negligent and whether the County is liable for injury caused by a

dangerous condition of its property, the trial court erred in its grant of summary judgment

to respondents.

The judgment is reversed and the matter is remanded for further proceedings. The

trial court is instructed to enter an order denying respondents’ motion for summary judgment. Kim is entitled to recover his costs on appeal.