By:  Mark I. Melo, Esq.

Now that Halloween has come and gone, many of us are now anxiously awaiting the Thanksgiving Holiday. While we comb the stores for the perfect turkey and the last bag of cranberries, we here at Bradley, Gmelich & Wellerstein LLP also look forward to the more challenging kinds of “family fun” we enjoy every year.

We are talking about all of the 10K turkey trots on Thanksgiving morning, the flag football games with kids and neighbors before dinner, and diving into the full-tackle, pre-dawn Black Friday sales with your siblings while the rest of the family sleeps off the mashed potatoes and pumpkin pie.

These spirited activities are part and parcel of Thanksgiving traditions for families far and wide. But all holiday high jinks, especially those that happen outdoors, pose at least a little physical risk. Less than a week before Halloween, the 2 nd District Court of Appeal (covering the Los Angeles area) issued its own reminder of the risks posed by family fun on a long holiday weekend in the case of Foltz v. Johnson.

Ms. Foltz met Mr. Johnson in September 2010, and they were engaged by September 2011. During their relationship, the couple rode dirt bikes together on several camping trips. While Mr. Johnson was an experienced dirt bike rider, Ms. Foltz was more of a novice, having only ridden a dirt bike three times during junior high before meeting her fiancé. On Labor Day weekend in 2011, Mr. Johnson’s and Ms. Foltz’s combined families went camping in Dove Springs, California. After riding on dirt trails near a dry riverbed for a couple of hours, Mr. Johnson encouraged Ms. Foltz to follow him toward some nearby sand dunes. After she repeatedly told Mr. Johnson that she did not like riding in sand, he told her that there would be clear trails on which she could ride.

However, when they reached the dunes, the trail stopped. Nevertheless, Ms. Foltz continued to ride with Mr. Johnson for another 10 minutes across the dunes with no trail, increasing her speed to avoid getting mired in the sand. Ms. Foltz then turned around to head back to camp. While going back downhill at about 40 miles per hour – and on a different path than the one she had used to climb the dune – Ms. Foltz’s dirt bike hit a rock, causing her to fly over the handlebars. The bike then landed on her back, causing her severe spinal injuries.

Ms. Foltz sued her now ex-fiancé for negligence the following year. Ms. Foltz alleged that he increased the risk to her by making a “deliberately false guarantee of specific conditions” regarding the trails, even though he had ridden at Dove Springs many more times and was more familiar with the terrain.

The lower court granted summary judgment for Mr. Johnson, and the Court of Appeal affirmed. In doing so, the Court held that the primary assumption of risk doctrine barred the plaintiff’s claim as a matter of law. The Court concluded that Ms. Foltz’s injuries are an inherent risk of the activity in which she chose to participate. Mr. Johnson’s descriptions of the area did nothing to conceal the obvious nature of the terrain itself. Ms. Foltz herself was aware of her limited riding experience and abilities, and yet chose to not only follow Mr. Johnson up the sand dune when the trails stopped, but to choose a different, less familiar path going downhill.

As the Court observed, Ms. Foltz was not a child when this accident occurred. While Mr. Johnson encouraged her to ride with him, it was not a competitive event, and he did not pressure or threaten her to follow him across the dunes. Thus, the Court determined that Mr. Johnson did not act recklessly or negligently in inviting Ms. Foltz to ride past the end of the trail.

Obviously, this is an extreme result. Still, as the turkey trots and flag football games of November give way to the polar bear swims, ski weekends, and sled races of December, a little moderation is always a good idea. Whether at the dinner table, the kids’ table, or outside, it is perfectly appropriate to call it a day when you know you have had all the family fun you can handle.

On behalf of everyone at Bradley, Gmelich & Wellerstein LLP, we wish you and yours a very happy and safe Thanksgiving!