Metropolitan News-Enterprise


Wednesday, September 30, 2020


Page 1


Huge Pothole Not an ‘Inherent Risk’ of Long-Distance Cycling—C.A.

Opinion Affirms $1.3 Million Judgment to Injured Bike-Rider


By a MetNews Staff Writer


A recreational bicyclist who was seriously injured after running into a four-foot long pothole is not barred by the doctrine of primary assumption of risk from recovering a $1.3 million damage-award against the county that maintains the road, Div. Five of the First District Court of Appeal has held.

Acting Presiding Justice Mark B. Simons wrote the opinion, filed Monday. It affirms a judgment by Sonoma Superior Court Judge Jennifer V. Dollard, pursuant to a jury verdict, rejecting the county’s contention that the judge erred in denying her motions for summary judgment and for judgment notwithstanding the verdict.

The County of Sonoma argued that it had no duty to cyclist Catherine Williams—who was flipped off her bike while taking a 30-mile ride to train for a long-distance recreational event—to reduce the risks inherent in her activity because it had no relationship with her or to the activity of long-distance recreational cycling.

Simons declared that the county does have a duty to maintain safe roads “for all foreseeable uses, including uses that fall outside of the primary assumption of risk doctrine: driving, riding a motorcycle, and bicycling as a means of transportation.”

The county also contended that to impose such a duty would alter the fundamental nature of Williams’ activity and chill participation in it, both of which the assumption of risk doctrine aims to avoid.

As such, it claimed Williams was barred from alleging injury as a result of a “dangerous condition” of public property under Government Code §835 and from recovering the $1.3 million jury award that was based on a finding the county was 70 percent at fault.

Admitted Hazard

Simons noted the county did not assert that the large pothole, measuring four-inches deep, was not a hazard. In fact, a road maintenance manager had testified that the pothole posed a hazard to “[a]nything on the roadway.”

He wrote:

 “Thus, to the extent the County already owed a duty to other road users to repair the pothole, we see little risk that imposition of the same duty with respect to long-distance, recreational cyclists would lead the County to take steps that would fundamentally alter the nature of the activity.”

Williams was traveling at least 25 miles an hour and unable to avoid the pothole by the time she spotted it, causing her to be thrown off her bicycle. The pothole had been reported to the county six weeks before Williams’ accident.

Not Inherent Risk

The county maintained it cannot eliminate every road hazard that would pose risks for recreational cyclists and that such risks, including falling off one’s bike, are inherent to the activity.

Simons said encountering such a large pothole was “not an inherent risk of long-distance, recreational cycling” and that the county’s already existing duty to repair the pothole for foreseeable users supported the conclusion that it owed a duty to Williams.

“Accordingly, the County’s argument that Plaintiff’s claim is barred by the primary assumption of risk doctrine fails,” Simons wrote.

In a portion of the opinion that was not certified for publication, Simons said that the county has not been persuasive in its assertion that Dollard erred in declining to instruct the jury on the doctrine of primary assumption of the risk.

“Although the County notes that some courts have held such a question to be one of fact, for the jury to decide, the County makes no reasoned argument that the question is one of fact or that it was prejudiced by any failure to present it to the jury,” he wrote.

The case is Williams v. County of Sonoma, 2020 S.O.S. 4560.


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