Cal.Rptr.3d 528] Monterey County Superior, Court Superior
Court No. 16CV001236. Hon. Thomas W. Wills (Monterey County
Super. Ct. No. 16CV001236)
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
for Plaintiff/Appellant: Daniel Kee-Young Kim, Jr., Lieff
Cabraser Heimann & Bernstein, Robert J. Nelson, Sarah R.
London, Michael Levin-Gesundheit, Kevin R. Budner, San
for Defendants/Respondents: County of Monterey and Sports Car
Racing Association of the Monterey Peninsula, Severson &
Werson, Jan T. Chilton, Michael B. Murphy, San Francisco
for Defendant/Respondent: Sports Car Racing Association of
the Monterey Peninsula, Spiering, Swartz & Kennedy, Andrew H.
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 [256 Cal.Rptr.3d 529]
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.
FACTUAL AND PROCEDURAL BACKGROUND
Laguna Seca Raceway (the Raceway) is a motor racing
circuit 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
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
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.
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 [256 Cal.Rptr.3d 530] 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 �
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.
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
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.
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 [256 Cal.Rptr.3d 531] 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
March 14, 2015, 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.
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 ...