TAHOE/TRUCKEE — Is motorcycle riding a “sport” done for enjoyment or thrill — that requires physical exertion as well as skill — with potential risk of injury? My dad, the medical doctor and surgeon, indoctrinated the Porter boys: Motorcycle riding is just plain dangerous.Harley-Davidson HOG RideSince 2001, Harley-Davidson of Los Angeles has organized a toy ride called the “Pursuit For Kids Toy Drive.”The 2006 Toy Ride took place on Nov. 26. Participants could pre-register or register at the Harley-Davidson dealership. Registration including signing a release form in which the rider agreed to assume the risk of any accidents. Robert Amezcua, who had ridden in several Toy Rides before he showed up for the 2006 event, conveniently did not register and sign the release and waiver form. Motorcycle DownYou know what happened next. Robert’s bike went down on one of those infamous L.A. freeways. A van, not part of the group ride, swung into his lane.Robert sued Harley-Davidson. Harley-Davidson challenged the lawsuit saying he had “assumed the risk” of the group ride and it had done nothing wrong, especially as “the Toy Ride was staffed by HOG volunteers.” I was never quite sure what a HOG was — Harley-Davidson Owners Group. Now I am cool and you can be too.Robert claimed he did not assume the risk of a fall because he did not sign the release; plus the assumption of risk defense only applies to risky sporting events, and neither motorcycle riding nor the 2006 Toy Ride is a sporting event. Those were the issues in this case.Release and WaiverThe first issue handled by the Court of Appeal was easy. Robert pitched the Court that as he had not signed the HOG release, he had not assumed any risks, so he could sue Harley-Davidson. In one line, the Court of Appeal concluded that whether Robert signed the release was not determinative of whether he assumed the inherent risks associated with a group motorcycle ride. Round one for the HOGs. I like writing HOG. Makes me feel manly.Assumption of RiskAs you regular readers know, the “Law Review” has discussed the Assumption of Risk Doctrine before. Generally stated, participants in an active sports activity, such as a touch-football game, generally assume the risks inherent in the activity as long the organizer does not increase the risk of injury.The courts have applied the Assumption of Risk Doctrine, concluding participants could not sue for injuries, in all sorts of activities: water skiing, sport fishing, golf, snow skiing, baseball, white water rafting, inner-tube towed by a motorboat, two personal watercrafts crashing into each other and motorcycle “off-roading.” The public policy behind the Assumption of Risk Doctrine is to not open the litigation door so that whenever sports participants are injured they sue, which would “chill vigorous participation in the activity and thereby alter its fundamental nature” — i.e., certain activities have an element of risk to them and as long as the organizers do not increase that risk they are generally immune from liability. A good thing in my opinion. Burning ManRobert Amezcua argued that motorcycle riding, unlike snow skiing or whitewater rafting, is not really a dangerous sport. Unfortunately for Robert, he had not read the Burning Man Festival case which we featured in this column several years ago. An attendee who walked into the burning embers to deposit personal items into the low-flames, part of the ritual, fell and was severely burned. Even though Burning Man is not a “sports” event, the court wrote, “The risk of stumbling on buried fire debris was an obvious and inherent one.” That risk was assumed.HOGs RuleThe Court of Appeal concluded, “Like the risk of being burned while participating in the Burning Man Festival ritual, the risk of being involved in a traffic collision while riding in a motorcycle procession on a Los Angeles freeway is apparent. For these reasons, we conclude that riding a motorcycle in the 2006 Toy Ride qualifies for application of the primary Assumption of Risk Doctrine.” Victory for HOGs. Jim Porter is an attorney with Porter Simon, with offices in Truckee and Reno. He is a mediator and was the Governor’s appointee to the Fair Political Practices Commission and McPherson Commission, both involving election-law and the Political Reform-Act. He may be reached at email@example.com at the firm’s website www.portersimon.com.
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