Court of Appeal’s reversal of trial court’s entry of summary judgment in favor of two defendants in Kim v. County of Monterey will serve as new benchmark for courts wrestling with the distinction between ordinary and gross negligence
The California Supreme Court has denied a petition for review of the Court of Appeal’s published opinion reversing the trial court’s ruling in favor of two defendants in Kim v. County of Monterey (Sixth District Court of Appeal, no. H045577; Monterey Superior Court, no. 16-cv-1236). Lieff Cabraser’s client suffered serious injuries when he collided with sandbags placed immediately adjacent to the pavement of the world-renowned Laguna Seca racetrack at an amateur motorcycle event. Reversing the trial court, the Court of Appeal concluded that where, as here, there are disputed questions of fact about whether the defendants (a) increased the inherent risk of an activity and (b) breached their duty by severely departing from an industry standard, those questions must be resolved by a jury, not a court on summary judgment. The opinion provides additional clarity on what the court described as the “not well developed” question of “where to draw the line between ordinary and gross negligence as a legal matter.”
The case also resolves two other important questions: (1) whether gross negligence claims are precluded as a matter of law where defendants take actions that decrease the risk of one harm but increase another; and (2) whether, in a gross negligence case, plaintiffs must provide an expert opinion establishing “an industry standard” to defeat summary judgment. The Court of Appeal held that the answer to both questions is “no.”
After years of waiting, our client will finally have the opportunity to present his case to a jury. Equally as important, the defendants—and, indeed, all entities that offer recreational activities to the public in California—have been put on notice: Take safety seriously because the ubiquitous negligence waivers required for participation at their facilities will not insulate you from liability for reckless acts.
The case is Kim v. County of Monterey, et al., case number H045577, in the Court of Appeal of the State of California Sixth Appellate District (Monterey County Super. Ct. Case No. 16-cv-1236).