APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Super.Ct.No. RIC498185
The opinion of the court was delivered by: Miller J.
CERTIFIED FOR PUBLICATION
Affirmed in part; reversed in part.
Plaintiffs and appellants Jerid and Amy Rosencrans (plaintiffs) sued defendant and respondent Dover Images, Ltd. (Dover) for (1) negligence; (2) negligent training and supervision; and (3) loss of consortium. The trial court granted Dover's motion for summary judgment as to all of the causes of action. Plaintiffs contend that the trial court erred by granting summary judgment because they presented triable issues of fact. We affirm in part, and reverse in part.
FACTUAL AND PROCEDURAL HISTORY
Dover does business as Starwest Motocross, and operates a motocross track known as Starwest Motocross Track (the track). The track is located at the Lake Perris Fairgrounds in Perris. On June 17, 2007, at the time of the incident in this case, the track's length was 0.6 of a mile. Before entering the track facility, patrons were required to stop their cars at a booth that was staffed by a Starwest employee. At the booth, while the patron was in his or her car, the patron paid a fee and signed a release and waiver of liability.
Jerid Rosencrans (Jerid)*fn1 had been riding motorcycles since he was 14 years old; on June 17, 2007, Jerid was 38 years old. On June 17, 2007, at 7:00 or 7:30 p.m., Jerid arrived at the track. He was driving his truck, with his motorcycle in the truck's bed. Jerid stopped his truck at the entrance booth at the Starwest facility. The Starwest employee in the booth gave Jerid a clipboard with the release document and said, "'Here, just sign in,'" or "'Here, sign this.'"
The document was titled, "Release and Waiver of Liability Assumption of Risk and Indemnity Agreement," (the Release) and underneath the title were approximately nine paragraphs. The paragraphs set forth the waiver and release. For example, one of the paragraphs read: "2. Hereby releases, waives, discharges and covenants not to sue the owner of the Premises, any individual engaging in the Activities, rescue personnel, and the Premises inspectors, surveyors, underwriters, consultants and others who give recommendations, directions or instructions or engage in risk evaluation or loss control activities regarding the Premises, and each of them, their directors, officers, agents and employees[,] from all liability to the Undersigned for any and all loss or damage and any claim or demands therefore on account of injury to the person or property or resulting in death of the Undersigned arising out of or related to the use of the Premises for the Activities, whether caused by the negligence of the Releasees or otherwise."
Underneath the paragraphs were multiple horizontal lines, separated into four columns, where patrons can 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." The following illustrates the signature portion of the document:
Print Name Here Sign Name Here Witness Date
On the Release, Jerid printed his name, and signed his name over the words "I HAVE READ THIS RELEASE." Jerid signed the Release within approximately 10 seconds of the document being handed to him. Jerid was not given a copy of the Release that he signed. The total exchange at the entrance booth lasted approximately 30 seconds.
Approximately 20 other motocross riders were practicing on the track when Jerid arrived--there was not a race occurring at the track. Jerid put on his goggles, helmet, and chest protector, and proceeded to ride his motorcycle on the track. Jerid had been riding on the track for approximately 30 minutes when he went up a ramp for a jump and fell, landing on the downslope of the ramp, which placed him outside of the view of the other riders. Jerid was not hurt, and proceeded to stand and pick up his motorcycle. Approximately 30 seconds later, a motorcyclist on the track struck Jerid. Approximately 20 seconds after that collision, a second motorcyclist struck Jerid. Jerid's complaint alleges that the collisions caused him to suffer "serious and severe injuries."*fn2
Jerid's initial fall took place near a platform where a person employed as a "caution flagger" would typically stand. From the platform, a "caution flagger" can see riders who have fallen down, and then alert other riders, who are unable to see fallen motorcyclists, that there is a fallen motorcyclist on the track. There was at least one caution flagger at the track when Jerid fell; however, at the time of the fall, the caution flagger was not on the platform near the location where Jerid fell. Jerid saw a caution flagger on the far side of the track from where he fell, and he saw the caution flagger run towards him prior to being struck by the second motorcyclist.
Plaintiffs alleged three causes of action against Dover. First, Jerid alleged Dover "negligently owned, operated, maintained and/or controlled" the track. Second, Jerid alleged Dover failed to adequately supervise and train its employees. Third, Jerid's wife alleged the foregoing negligent acts caused her to be deprived of Jerid's support, love, care, companionship, and sexual relations.
2. MOTION FOR SUMMARY JUDGMENT
Dover moved for summary judgment. In regard to the first and second causes of action, Dover asserted Jerid's claim was barred by Jerid's execution of the Release. In regard to the loss of consortium cause of action, Dover argued the claim was barred because it was derivative of the barred first and second causes of action.
3. OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT
Plaintiffs opposed Dover's motion for summary judgment. First, plaintiffs asserted the Release could be found to be unenforceable because (1) the Dover employee at the booth represented the document was a sign-in sheet; (2) the Release was written in a small font; (3) Dover never informed Jerid he was signing a release; (4) Jerid did not know he was signing a release; (5) the title of the document was obscured by the clipboard's metal clip; (6) Dover did not give Jerid a copy of the Release; and (7) there was insufficient time for Jerid to read the Release while stopped at the entrance booth. Plaintiffs argued the foregoing evidence showed that Jerid may not have freely entered into the Release, which would create a triable issue of fact as to whether the Release was void.
Second, plaintiffs argued that even if the Release were enforceable, it could not bar a claim for gross negligence. Plaintiffs asserted that they produced evidence creating a triable issue of fact for gross negligence on the part of Dover. Specifically, plaintiffs argued (1) Dover had "a duty to have caution flaggers at a permanent station"; (2) Dover failed to place a caution flagger at the platform near the site of Jerid's fall; and (3) a caution flagger did not warn other motorcyclists that Jerid had fallen on the track for approximately 30 seconds.
Additionally, plaintiffs argued there was evidence Dover was grossly negligent in its hiring and supervising of employees. Plaintiffs asserted their expert declared that Jerid's "injuries were caused by caution flaggers who were not properly trained or supervised." Plaintiffs argued that since the ...