Metropolitan News-Enterprise


Friday, February 18, 2011


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Court Revives Suit Against Motocross Track Operator

Purported Waiver Does Not Bar Claim for Gross Negligence, Panel Says


By SHERRI M. OKAMOTO, Staff Writer


The Fourth District Court of Appeal has revived a motocross rider’s lawsuit against the operators of a Riverside county track for gross negligence.

Div. Two on Wednesday concluded the Starwest Motocross Track in Perris had a duty to minimize the risk of a collision between riders and a fallen participant by providing an adequate warning system. The panel also held that Jerid Rosencrans’ cause of action against the track operator was not barred by his execution of a waiver of liability purportedly offered to him as a sign-in sheet.

Rosencrans, who was 38 at the time of his injury in 2007 and had been riding motorcycles for over 20 years, testified that a Starwest employee had handed him a clipboard when he arrived at the entrance booth for the track facility and instructed him to “just sign in” or “sign this.”

Attached to the clipboard was a document titled, “Release and Waiver of Liability Assumption of Risk and Indemnity Agreement,” which was approximately nine paragraphs in length. Underneath the paragraphs were multiple horizontal lines, separated into four columns, where patrons could print and sign their names.

In the section where patrons signed their names, they were required to sign their name over the words “I have read this release.”

Rosencrans claimed he had printed his name, and signed his name over the words “I HAVE READ THIS RELEASE” within 10 seconds of the document being handed to him, and estimated that the total exchange at the entrance booth lasted around 30 seconds. He said he was unaware he was signing a release since the title of the document was obscured by the clipboard and there was insufficient time to read the language on the form.

After riding his motorcycle onto the track, Rosencrans went up a ramp for a jump and fell on the downslope of the ramp, outside of the view of the approximately 20 other riders on the track.

He said he was unhurt and got to his feet before he was struck in quick succession by two other riders, causing him to suffer unspecified injuries.

His fall had taken place near a platform erected for use by a “caution flagger”—a person employed to watch for fallen riders and alert participants to the downed motorcyclist on the track. Rosencrans said there was a caution flagger at the track on the night he was injured, but this person was on the far side of the track from where he had fallen, and he claimed to have seen the caution flagger run towards him before he was struck by the second motorcyclist.

Rosencrans sued Starwest, claiming the company had “negligently owned, operated, maintained and/or controlled” the track, and that it had failed to adequately supervise and train its employees. His wife also asserted a loss of consortium claim.

Riverside Superior Court Judge Mac R. Fisher granted the track operator’s motion for summary judgment as to all of the claims, finding the release was enforceable,  the undisputed facts did not rise to the level of gross negligence, and that Rosencrans had assumed the risk of being injured by choosing to participate in motocross. Fisher also said the consortium cause of action was derivative of the negligence claims, so it also  failed as a matter of law.

Writing for the appellate court, Justice Douglas P. Miller agreed that the release was enforceable since Rosencrans had a reasonable opportunity to discover the true terms of the contract if he had read it, and that the terms of the agreement barred the claims for ordinary negligence as well as negligent hiring and supervision.

The justice, however, explained that Rosencrans’ claim for gross negligence would not be barred by the release due to public policy concerns and that triable issues existed as to such a cause of action.

Miller reasoned that based upon the “racetrack setting, speed involved, and jumping maneuvers” involved in motocross, “it follows that coparticipants will fall down, and while down, be struck by other riders whose views are obscured by the blind corners, blind ramps, dust, and/or other riders.” As an operator of a motocross track, Miller said Starwest had a duty to minimize the risks inherent in the sport, without altering its nature.

“Providing a warning system of some sort, such as caution flaggers to alert riders of a fallen participant, would assist in minimizing the risk of riders colliding with one another” but “would not alter the sport, because it would not prevent riders from jumping and traveling at high speeds, rather it would provide the riders with information so that they could alter their course as necessary,” he said.

The justice distinguished the case from precedent involving the duty of one participant to another participant. He also emphasized that Starwest was not required to eliminate the risk of collisions between riders, but was obligated to meet the standard of care established in the motorcross industry.

Based on testimony proffered by a safety expert that the common practice for motocross tracks is to have caution flaggers at their assigned posts at all times, Miller posited that a jury could find the alleged failure to have a flagger on the platform where Rosencrans fell constituted an extreme departure from industry custom and led to the alleged injuries.

Justices Jeffrey King and Carol D. Codrington joined Miller in his decision.

The case is Rosencrans v. Dover Images, Ltd., 11 S.O.S. 966.


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