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Kim v. County of Monterey

California Court of Appeals, Sixth District

December 12, 2019

Daniel Kee-Young Kim, Jr., Plaintiff and Appellant,
COUNTY OF MONTEREY et al., Defendants and Respondents.

          Monterey County Superior Court Superior Court No. 16CV001236, Hon. Thomas W. Wills Trial Judge

          Counsel for Plaintiff/Appellant: Daniel Kee-Young Kim, Jr. Lieff Cabraser Heimann & Bernstein Robert J. Nelson, Sarah R. London, Michael Levin-Gesundheit, Kevin R. Budner

          Counsel for Defendants/Respondents: County of Monterey and Sports Car Racing Association of the Monterey Peninsula Severson & Werson Jan T. Chilton Michael B. Murphy

          Counsel for Defendant/Respondent: Sports Car Racing Association of the Monterey Peninsula Spiering, Swartz & Kennedy Andrew H. Swartz

          DANNER, J.

         Appellant Daniel Kee-Young Kim, Jr., challenges an order granting summary judgment to the County of Monterey (the County) and to the Sports Car Racing Association of the Monterey Peninsula (SCRAMP) (collectively, respondents) on his claims of dangerous condition of public property and gross negligence. Kim's claims stem from injuries he incurred in 2015 during an amateur event at the Laguna Seca Raceway when the motorcycle he was riding collided with sandbags placed near the track. Because we conclude that Kim raised triable issues of fact material to these causes of action, we reverse the judgment.


         A. The Raceway

         The Laguna Seca Raceway (the Raceway) is a motor racing circuit[2] located in Salinas and owned by the County. The County and SCRAMP are parties to a concession agreement under which they co-manage the Raceway. Pursuant to the concession agreement, SCRAMP manages the Raceway's day-to-day operations, and the County is responsible for drainage issues.

         A variety of bodies govern professional motor racing, including the Fédération Internationale de Motocyclisme (FIM) and the Fédération Internationale de l'Automobile (FIA). These bodies issue racing standards, such as the FIM Standards for Road Racing Circuits (FIM Standards) and the FIA International Sporting Code (FIA Standards). In 2014, the Raceway obtained a license from FIM, which permitted the Raceway to hold FIM-sanctioned, professional motorcycle racing events. Professional races are not held at the Raceway during the winter, or “rainy season, ” which lasts from October through May.

         The Raceway features a 2.238-‍mile, 11-turn race course, which includes the asphalt-paved track, verges, and run-off areas. Verges and run-off areas are among the protective measures contemplated by the FIA and FIM to increase safety because these areas permit a driver or rider to regain control or decelerate after making a mistake, suffering a mechanical failure, or coming into contact with another driver or rider.

         The FIM Standards state that “[v]erges should be completely flat without any kind of obstruction, ” and “[t]he transition from the verge to the run-off area should be very smooth.” (FIM Standards at § 4.8.2.) The FIM Standards also provide that “[a]ll the required drainage channels at the sides of the Race Track and between the verge and the first line of protection should be installed in such a way that the covers do not represent any step or bump for the motorbikes and riders that have lost the racing line: i.e. they must be covered by a smooth metal wire mesh or an absorbent well must be used, in order to maintain, without any interruption, the normal surface of the verge and/or of the run-off area.” (FIM Standards at § 4.4.)

         At the Raceway, drains and ditches appear at various points around the track, either immediately adjacent to the track or within a three- to four-foot vicinity. A third-‍party engineering firm, Whitson Engineering, was responsible for the design and placement of the Raceway's drains and ditches. Since approximately 1981, sandbags have been placed at locations around and adjacent to the track during the rainy season. For professional racing events at the Raceway, the sandbags are removed and the drains and ditches are covered.

         Organizations rent the Raceway for amateur events. A track renter has an opportunity to inspect the track before an event to assess its safety. SCRAMP will remove the sandbags if requested by a party renting the Raceway. Approximately two organizations that have rented the track have requested that sandbags be removed at certain areas of the Raceway before their events.

         The Raceway has undergone significant changes over the past two decades to meet evolving safety requirements by the FIM and other sanctioning bodies. At the time of Kim's accident (discussed further below), SCRAMP's track rental supervisor was unfamiliar with FIM Standards and other equivalent standards for track safety. Neither SCRAMP's chief executive officer nor members of SCRAMP's board of directors possessed any experience or training on track safety. No one on SCRAMP's board of directors suggested ceasing track rentals during the winter months.

         SCRAMP's vice president for facilities operations, Bohdan Beresiwsky, was the person responsible for safety at the Raceway. Beresiwsky's training about track design and safety involved “ ‘one or two seminars' on ‘asphalt design.' ” No one on Beresiwsky's staff possessed training in motorcycle safety, racetrack design, or drainage.

         Without consulting track safety or design experts, Beresiwsky directed the placement of sandbags-provided by the County-around the Raceway for erosion control purposes. While Beresiwsky knew that the placement of sandbags in the safety zone violated FIM Standards, he believed that FIM Standards did not apply to amateur racing events. In the past, SCRAMP installed sandbags during the winter and then removed them during the summer for the professional racing season. SCRAMP could have installed a more permanent solution to drainage, such as a slotted or French drain used at other racetracks.

         Pursuant to the concession agreement, both the County and SCRAMP have a “joint duty to operate and maintain... in good condition and repair, ” “to a standard equal to that performed by the [County's] Parks Department, ” designated joint areas of the Raceway with the “proceeds of the track rental fund.” This joint duty to “maintain... in good condition and repair” includes necessary grading of the “[t]rack run-off and shoulders... to facilitate year-round track rental usage.” The County maintains responsibility for drainage at the Raceway but defers to SCRAMP on track safety issues. No one working for the County at the time of Kim's accident possessed any expertise in track safety.

         In 2006, Mazda Motor of America, Inc. (Mazda), and SCRAMP entered into a five-year, $7.5 million agreement (the 2006 Agreement) for title sponsorship of the Raceway. The agreement was renewed in 2012 (the 2012 Agreement). The 2012 Agreement obligated SCRAMP to spend “no less than” 70 percent, or $5.25 million, of the sponsorship money for “capital improvements to the Laguna Seca racing facility, ” to “address safety issues, ” and for “participant and facility improvements.”

         B. Kim's Accident

         On March 14, 2015, [3] Kim attended a “track day” event at the Raceway hosted by an organization called Keigwins@TheTrack (Keigwins) that had rented the Raceway for March 14 and 15. Kim had previously participated in other track days at the Raceway. At a track day, clubs, enthusiast groups, and individuals rent the Raceway to drive their automobiles or motorcycles around the circuit. A track day is not a professional-level race, but riders at these events may travel at speeds of up to 140 miles per hour. Kim signed a waiver and release prior to participating in the March 14 track day event.

         Keigwins did not ask SCRAMP to remove any of the sandbags from the Raceway for the March track day event and generally deferred to SCRAMP regarding safety issues. Keigwins's employees did not inspect the Raceway before the event.

         Keigwins instructed track day participants to “ ‘ride into the run off' ” and to “ ‘stay off the brakes' ” if they “ ‘get into the dirt.' ” It was foreseeable that track day participants would lose control of their motorcycles and enter the safety zone. However, none of the participants were warned about the rows of unmarked, burlap-‍colored sandbags (which were dirty and generally the same color as the ground) placed around the race course, including in the safety zones.

         During the March 14 track day event, Kim rode his motorcycle for 10 to 15 laps before he “ ‘ran wide' ” at turn 5. At that turn, Kim rode into the safety zone and collided with one or more sandbags placed near the track. Kim was ejected from his motorcycle and suffered serious injuries.

         C. Kim's Complaint

         Based on the injuries he sustained at the March 14 track day event, Kim presented a claim for damages to the County. Following the County's rejection of Kim's claim, he filed suit against the County, SCRAMP, the Raceway's then-‍title sponsor Mazda, and the track day event sponsor, Keigwins (collectively, defendants).[4] As relevant to this appeal, Kim's complaint[5] alleged in the first cause of action a claim against the County for dangerous condition of public property (Gov. Code, § 835)[6] and in the second cause of action a claim against SCRAMP for gross negligence.[7]

         Kim's complaint alleged “the sandbags on the track run-off created a dangerous condition on public property. These unmarked sandbags-placed in an intended safety zone-substantially increased the risk of injury beyond those inherent to motorcycle racing. This dangerous condition created a reasonably foreseeable risk that riders, such as [Kim], would enter the run-off, crash into the sandbags, and suffer significant injuries. In creating this dangerous condition, or being aware of it and failing to warn or repair or protect or safeguard [Kim] despite ample time to do so, [d]efendants were grossly negligent.” Kim also alleged that on March 14 the “weather at the Raceway was warm, sunny, and dry, as it had been for at least a week, ” that respondents postponed safety upgrades to the Raceway, and that “SCRAMP diverted funds from track sponsorships to operating or debt expenses rather than funding track improvements.”

         Kim's complaint alleged in the first cause of action that the County had a “duty to exercise reasonable care in the ownership, operation, management, construction, and/or maintenance of the Raceway” so as to not create a dangerous condition, as well as a “duty to not increase the risks inherent to motorcycle racing on the Raceway.” Kim further alleged that the placement of the sandbags caused a dangerous condition on public property and the County created this dangerous condition through its “grossly negligent conduct, wrongful act, or omission, and/or had constructive notice of the dangerous condition prior to [Kim's March 14 accident], with sufficient time to have taken measures to protect against the dangerous condition.”

         Additionally, Kim alleged that defendants “violated international and American safety standards governing racetrack design by obstructing the Turn 5 track run-off with sandbags.” A “reasonable entity” would have removed the sandbags prior to the March 14 track day “to avoid creating substantial risk of injury and a dangerous condition on public property, ” and “[d]efendants' lack of any care and/or extreme departure from the existing standard of care elevates their wrongful conduct to the level of gross negligence.”

         In the second cause of action for gross negligence, Kim's complaint made allegations substantially similar to those in the first cause of action. Both claims asserted defendants' liability based on alternative theories of misfeasance (by creating the risk) and nonfeasance (by failing to warn of the risk). In anticipation of defendants' affirmative defenses based on the written release and on the doctrine of assumption of risk, Kim asserted that defendants were nevertheless liable “on account of their gross negligence to Plaintiff, which substantially increased the risk of injury beyond those inherent to motorcycle racing on the Raceway.”

         D. Summary Judgment Proceedings

         Defendants filed a number of motions to strike and for judicial notice. The trial court granted defendants' motion to strike Kim's claim for punitive damages and took judicial notice of the FIA Standards but denied the remaining motions to strike and requests ...

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