HomeMy WebLinkAbout10/17/2017 Item 10, Cooper (2)
Christian, Kevin
From:Allan Cooper <allancoope@gmail.com>
Sent:Saturday, October
To:Johnson, Derek; Hermann, Greg; Hill, Robert; E-mail Council Website
Subject:A Proposed Two-Year Pilot Program to Extend the Hours of Use Of The Cerro San
Luis Natural Reserve When Daylight Savings Time Is Not In Effect
Dear Derek, Greg and Robert -
Would you kindly forward the letter below (this is my
second letter) to the Council before their October 17, 2017
meeting? Thanks!
- Allan
To: SLO City Council
Re: Public Hearing Item #10
From: Allan Cooper, San Luis Obispo
Date: October 14, 2017
Honorable Mayor Harmon and Council Members -
According to data compiled by the National Institute of Health, downhill mountain biking
(DMB) can be considered an extreme sport conveying a high risk of serious injury (see:
https://www.ncbi.nlm.nih.gov/pubmed/23329619).
Main causes of injury reported by the riders were riding errors (72%) which increase
when riding at night. Based on published case controlled studies and cross sectional
surveys of mountain biking injuries, injuries due to inattention and poor visibility increase
at night. If you look at this YouTube video (see: https://www.youtube.com/watch?v=plWz-
DgYu1Q), you will have confirmation that mountain biking at night is indeed an “extreme
sport”. Also, check out the following promotional piece for “jumping into the unknown”
(see: see: https://www.redbull.com/us-en/awesome-light-trail-gallery-mountain-biking-at-
night). Look over some of these photos and read the following text, which appears to be
all about adrenaline rushes.
“Are you brave enough to hit a jump in the dark? Not being able to see the landing or even
the take-off until last minute turns this into a leap of faith into the unknown. Mountain trails
throw out new surprises at night, especially when you can only see a few meters of trail in
front of you…”
In the final analysis, mountain biking at night is not only hazardous to wildlife but it is also
extremely hazardous to the bikers.
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You therefore have actual or constructive knowledge that injury is a probable, as opposed
to a possible, result of extending the hours of mountain biking within the City limits. This
means that your decision to extend mountain biking hours is an act of negligence that will
rise to the level of willful misconduct and you will no longer be protected by California’s
recreational use immunity statute once the City is sued by a mountain biker or his family
for an injury or fatality (see below).
According to the New Times, SLO’s final number-crunching says it will have to cut $8.9
million per year from its budget to stay solvent over time. You therefore have a fiduciary
responsibility to avoid burdening the City and its taxpayers with additional financial liability.
If for no other reason than that you seek to exercise responsible oversight of the City’s
financial affairs, you should be compelled to exclude night-time mountain bike riding from
this pilot study. Thank you for listening.
____________________________
California’s recreational use immunity statute carves out the following exception to
premises liability: An owner of any estate or any other interest in real property, whether
possessory or non-possessory, owes no duty of care to keep the premises safe for entry
or use by others for any recreational purposes or to give any warning of hazardous
conditions, uses of, structures, or activities on those premises to persons entering for a
recreational purpose….(Civ. Code, § 846.) This rule applies to interests in both public
and private real property. (Hubbard v. Brown (1990) 50 Cal.3d 189, 197.)
Recreational activities aside, there is no immunity from liability under the following
circumstances: (a) for willful or malicious failure to guard or warn against a
dangerous condition, use, structure or activity.
Neither negligence nor gross negligence satisfies the requisite intent for willful or
malicious conduct. (Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal.App.4th 927, 939-
940.) To the contrary, there must be a “positive intent actually to harm another or do an
act with a positive, active and absolute disregard of its consequences.” (Id. at 940.) In
other words, “the intention must relate to the misconduct and not merely to the fact some
act was intentionally done.” (Id.) For an act of negligence to rise to the level of willful
misconduct, there must be: “(1) actual or constructive knowledge of the peril to be
apprehended, (2) actual or constructive knowledge that injury is a probable, as
opposed to a possible, result of the danger, and (3) conscious failure to act to avoid
the peril.” (Id. at 945 (internal citations omitted.))
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