Foltz v. Johnson

224 Cal. Rptr. 3d 506, 16 Cal. App. 5th 647, 2017 Cal. App. LEXIS 931
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 25, 2017
DocketB277995
StatusPublished
Cited by2 cases

This text of 224 Cal. Rptr. 3d 506 (Foltz v. Johnson) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foltz v. Johnson, 224 Cal. Rptr. 3d 506, 16 Cal. App. 5th 647, 2017 Cal. App. LEXIS 931 (Cal. Ct. App. 2017).

Opinion

WILLHITE, J.

*650Plaintiff and appellant Kimberly Foltz suffered a paralyzing spinal injury after being thrown from her dirt bike during a ride with her then fiancé, defendant and respondent Darryl Johnson. Foltz filed an action alleging negligence against Johnson. Johnson successfully moved for summary adjudication on the basis of primary assumption of risk. Foltz concedes that primary assumption of risk applies here, but argues there are triable issues of material fact whether Johnson's conduct increased the risks inherent in off-road dirt bike riding, or engaged in reckless conduct outside *509the range of activities generally involved in dirt bike riding. We affirm.

BACKGROUND

The material facts surrounding the accident itself are largely undisputed: On September 4, 2011, Foltz and Johnson, were each riding their dirt bikes at the Dove Springs Off-Highway Vehicles Area (Dove Springs) in the Mojave Desert, when Foltz lost control of her dirt bike while riding down a steep sand dune. Her bike struck a rock, Foltz was thrown off and she sustained severe spinal injuries as a result.

Foltz's Experience with Riding Off-Road Dirt-Biking

Foltz and Johnson met in September 2010 and were engaged by September 2011. During their relationship, the couple frequently took their blended family to Gorman or Dove Springs, to camp and ride dirt bikes. Gorman's trails are well-established, hard dirt trails. The terrain and elevation at Dove Springs varies, ranging from easier hard-packed trails, to flat but sandy areas, and more difficult areas with soft, deep sand. Johnson is an experienced dirt bike rider, and often has ridden and is familiar with the terrain at Dove Springs. Foltz is not an experienced rider. Before she met Johnson, Foltz operated a dirt bike three times during junior high. After meeting Johnson, the first time Foltz operated a dirt bike herself was during her first trip to Dove Springs. On that occasion, she rode Johnson's 250cc dirt bike for about 30 minutes, and stayed on trails close to camp to avoid deep sand. She fell several times during that ride because Johnson's bike was too big and too heavy for her, and because the area was sandy. Subsequently, Foltz switched to a smaller (185cc) bike, which she was better able to control. Foltz *651understood that there is a risk that people who ride dirt bikes in sand or off-road may have accidents and suffer serious injuries.1

Several months before September 2011, Foltz bought her own 185cc dirt bike. She rode her dirt bike during five weekend trips during the months before September 2011 on the dirt trails at Gorman. At Gorman, Foltz rode at an average speed of 30 miles per hour (mph). She took several falls during those rides, after dodging a bush or other object, but was not injured. Foltz was more comfortable riding at Gorman because, among other things, Dove Springs was for more advanced riders and she preferred Gorman's dirt trails to the sand at Dove Springs.

The Accident at Dove Springs

The family went camping at Dove Springs for Labor Day weekend 2011. On the afternoon of September 4, 2011, Johnson suggested that he and Foltz ride to a dry riverbed about an hour away. According to Foltz's deposition testimony, Foltz had told Johnson that she did not like riding in sand. He had seen her fall in the past when the sand got too deep. Johnson "guaranteed [her] that it was all road. That it was all flat and easy to ride on." Johnson had been on this ride about 15 times before. Foltz agreed to go and donned riding gear. They each rode their own dirt bikes. It was a sunny, clear day, without wind or dust. Foltz could see the road and dunes ahead.

Foltz and Johnson had an uneventful ride from camp to the riverbed, without falls or accidents. When they stopped at *510the riverbed, Johnson suggested they continue riding. Foltz agreed, after seeing that there was a trail heading in the direction Johnson wanted to travel. She rode behind Johnson on a riverbank trail.

Describing the events preceding her fall in her deposition, Foltz testified that after about two hours of riding on the riverbank trail, "[t]he trail started to end and I saw that we were headed towards a dune. And I told [Johnson] I'm not going up there. He said he guaranteed me there was a trail, just to follow him."

They "headed upwards" into the dune. Asked whether there was "a trail or did it look like it was sand," she testified, "[t]here was a trail up until I got up into the dune. And [I] realized that there was-the trail had ended. ... As I got up into [the dune], it ended."

When she first noticed the trail was ending, she was already slowing down because her bike was sinking in the sand. She denied that after she realized *652the trail had ended, she continued to "ride for some distance," but then added: "I was struggling just to keep my bike up. I had to speed up to get through the sand. Mr. Johnson kept riding in front of me. At one point he turned around and I signaled to him that I'm turning around. I'm like I'm finished. I'm not doing this. He's like you can do it. You can ride through here. And I said no. I'm heading back to the campground."

Asked to give her "best estimate how far in terms of distance [she] traveled where there was this trail," she replied, "About 10 minutes." Her testimony continued: "As soon as I stopped-I realized the faster I went, I could get out of the sand. And I was turning around, and I'd say I was going ... 30 to 40. I was speeding up because now I'm heading out of the dune and I'm going downhill."

She testified that "I got in the middle of [the dune]. It went higher and I stopped." She was then asked whether it was "accurate to state that from the bottom of the dune to the middle of the dune was all sand, no trail." She answered, "Yes," an apparent contradiction of her earlier testimony that the trail did not end until she got up into the dune. Under further questioning, she added that in riding from the bottom to the middle of the dune, she "was stuck and riding through it for about 10 minutes." Her bike was sinking the entire time she was in the dune, from the moment she began her ascent to the time she decided to turn around, and the only thing she could do to get out of the sand was to speed up. When she stopped, Johnson was ahead of her and encouraged her to continue. She refused, made a U-turn, and started to descend. Johnson started following her down the hill.

She was traversing the dune on a route different than the one she used to follow Johnson uphill. The terrain was very steep and sandy. Foltz was travelling at about 40 mph, was unable to control her bike and was afraid. In the dune, there were large grooves-a foot wide and six inches deep, with a hard surface, and deep sand and rocks along the side. The grooves appeared to have been carved out by downstream water from previous rains. Foltz's bike got stuck in a groove, and her back tire was "fishtailing" because of the sand. She was afraid because she could not stop or control her bike. Foltz hit and cleared (jumped over) a big rock at about 40 mph, and continued downhill.

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Cite This Page — Counsel Stack

Bluebook (online)
224 Cal. Rptr. 3d 506, 16 Cal. App. 5th 647, 2017 Cal. App. LEXIS 931, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foltz-v-johnson-calctapp5d-2017.