ALBERTO ACOSTA, as Co-executor, etc., et al., Plaintiffs and Appellants, v. LOS ANGELES UNIFIED SCHOOL DISTRICT, Defendant and Appellant.
No. B070279
Second Dist., Div. Seven
Jan. 10, 1995
471
Hamrick, Garrotto, Briskin & Pene, Katherine B. Pene and Frances K. Prince for Defendant and Appellant.
Sanford M. Gage and Peter I. Bersin for Plaintiffs and Appellants.
JOHNSON, J.—
FACTS AND PROCEEDINGS BELOW
Omar Acosta was a member of the Hamilton High School gymnastics team. One night during the off-season, Omar was working out in the Hamilton gym under the supervision of assistant gymnastics coach Louis Thomas. He was practicing a new maneuver on the high bar called the front catch in which the gymnast swings forward and, at the top of his arc, lets go of the bar, performs a somersault and catches the bar on the way down. While practicing this maneuver Omar missed catching the bar, fell and landed on his neck. He was rendered quadriplegic.1 By special verdict, a jury found coach Thomas was negligent in supervising Omar‘s practice and this negligence was a substantial factor in bringing about Omar‘s injury. The jury found Omar did not assume the risk of his injury. However, the jury‘s special verdict also found at the time of the accident Omar was engaged in a “hazardous recreational activity” and Coach Thomas was not grossly negligent in causing Omar‘s injury. Therefore, in accordance with the special verdict, the trial court rendered judgment for the Los Angeles Unified School District (district).
Following entry of judgment, Omar filed motions for a new trial, judgment notwithstanding the verdict and to vacate the judgment and enter a different judgment. These motions rested on two arguments. First, the undisputed facts showed Omar was injured in the course of a school sponsored and supervised activity which, as a matter of law, is not a “recreational” activity within the meaning of
The district appealed from the orders described above. Plaintiff filed a protective cross-appeal from the judgment and appealed from the orders made after judgment to the extent they denied his request for a judgment of liability against the school district.
DISCUSSION
I. Plaintiff, Participating in a School-sponsored Athletic Practice Under the Supervision of School Personnel After Hours During the Off-season, Was Not Engaged in a “Hazardous Recreational Activity” Within the Meaning of
“(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity . . . .
“(b) As used in this section, ‘hazardous recreational activity’ means any recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator. . . .
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(c) Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:
“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
“(5) An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury.”
In some cases the question whether the plaintiff was engaged in a “recreational” activity may be a question of fact for the jury. (Cf. Domingue v. Presley of Southern California (1988) 197 Cal.App.3d 1060, 1065 [243 Cal.Rptr. 312] and Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1027 [157 Cal.Rptr. 612] [triable issues of fact whether plaintiffs were using private property for a “recreational purpose” within the meaning of
Plaintiff‘s initial argument is that
For immunity to apply under
If the term “hazardous recreational activity” is interpreted to include school sponsored and supervised activities, schools would be immune from liability for the negligent supervision of students engaged in virtually every extracurricular sport (e.g., football, basketball, baseball, gymnastics, soccer, wrestling), as well as activities which are often part of a school‘s physical education program such as archery and trampolining. As we explain below, this would constitute a major revision of California law with respect to school district tort liability.
In California it has been “long established that a school district bears a legal duty to exercise reasonable care in supervising students in its charge and may be held liable for injuries proximately caused by the failure to exercise such care.” (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 513 [150 Cal.Rptr. 1, 585 P.2d 851].) Our Supreme Court has declared, “The standard of care imposed upon school personnel in carrying out this duty is that degree of care ‘which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.’ . . . Either a total lack of supervision . . . or ineffective supervision . . . may constitute a lack of ordinary care on the part of those responsible for student supervision. Under
This duty does not evaporate the minute classes are dismissed for the day. As the Supreme Court observed in Hartzell v. Connell (1984) 35 Cal.3d 899, 909 [201 Cal.Rptr. 601, 679 P.2d 35], “[i]t can no longer be denied that extracurricular activities constitute an integral component of public education. Such activities are ’ “generally recognized as a fundamental ingredient of the educational process.” ’ ” The court went on to say ” ‘school-sponsored activities, such as sports, . . .’ though denominated ’ “extracurricular,” ’ ’ “nevertheless form an integral and vital part of the educational program.” ’ ” (Id. at p. 910.) In McGrath v. Burkhard (1955) 131 Cal.App.2d 367, 376 [280 P.2d 864], the court upheld a school board‘s assignment of teachers to supervise extracurricular activities, reasoning such supervision is “an important part of [a teacher‘s] duties” because of the “great importance” of educating students in principles of justice, fair play and good citizenship.
A court will not conclude the Legislature “intends to overthrow long-established principles of law unless such intention is made clearly to appear either by express declaration or by necessary implication.” (County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644 [122 P.2d 526].) Nowhere in
The district strenuously argues the activity in which Omar was injured was not a school-sponsored gymnastics team practice. Rather, it was part of
a community recreation program open to everyone. While it is true Hamilton High School alumni and members of the community would sometimes appear at the evening gymnastics practices, the evidence showed Coach Thomas ran structured training and drills for members of the gymnastics team. Thomas testified when he was overseeing these gymnastics practices he was carrying out essentially the same kind of duties the head coach carried out when he was running the practices. Omar had been a member of the Hamilton High School gymnastics team for the past two years and intended to compete in the coming season. At the end of the previous season Omar and the head gymnastics coach discussed the maneuvers Omar would work on during the off-season, including the front catch. On the night of the accident, Omar was practicing in the Hamilton High School gym on equipment provided by the school under the supervision of a Hamilton gymnastics coach who testified it was he who suggested Omar learn the front catch maneuver. The evidence leaves no doubt Omar was engaged in a school sponsored and supervised activity at the time of his injury.6
For the reasons set forth above, the immunity provided by
II. The School District Has Waived Any Errors Pertaining to the Issue of Negligence.
One issue remains. The district contends certain errors occurred at trial affecting the jury‘s finding of negligence but the trial court precluded the district from presenting argument on these errors following trial.
The record does not support this contention. The district filed written opposition to plaintiff‘s posttrial motions and orally argued against the motions at the hearing. At no time in the course of these proceedings did the district raise any errors affecting the jury‘s finding of negligence. It was only after the trial court announced its ruling on plaintiff‘s motions that the district, for the first time, raised unspecified “errors in law” with respect to the finding of negligence and requested “an opportunity to address those issues.” The trial court denied the request as untimely and pointed out the district could raise these alleged errors of law on the appeal.
The trial court‘s ruling was correct. It was far too late for the district to raise errors of law for the first time at oral argument on plaintiff‘s motions, especially since the court‘s jurisdiction to rule on the new trial motion was about to expire. (Cf. Pelletier v. Eisenberg (1986) 177 Cal.App.3d 558, 562-563 [223 Cal.Rptr. 84].) The district could have raised these errors on appeal but did not do so. Thus, we deem the errors waived.
DISPOSITION
The order granting judgment notwithstanding the verdict is reversed and the trial court is directed to enter a new and different order granting judgment notwithstanding the verdict in favor of plaintiff and against defendant on the issue of liability. The order granting a new trial is modified to provide the new trial shall be limited to plaintiff‘s comparative negligence, the amount of damages and apportionment of liability and is affirmed as modified. The order vacating the judgment and entering a different judgment is reversed. Plaintiff is awarded costs on appeal.
Lillie, P. J., concurred.
WOODS (Fred), J., Dissenting.—It is comprehendible how the tragic but “freak” accident in this instance has led the majority to stretch to conclude as a matter of law that
In my view, the reasoning of the trial judge in granting a motion for new trial limited, among other specifically defined issues, to a determination of whether the plaintiff‘s activities were school sponsored1 is sound. The trial judge recognized a dichotomy which is seriously underplayed in the majority opinion, i.e., whether the activity was “hazardous and recreational” on the one hand, giving rise to
The trial judge in ordering a limited new trial, recognized that he had failed to adequately instruct the jury by omitting instructions on the critical question of whether plaintiff‘s activities were school sponsored. I agree with the trial judge that such omissions was error.
The following facts gleaned from the record and considered in conjunction with the factual statement contained in the majority opinion lend merit to the ruling of the trial judge:
The Los Angeles Unified School District, and in particular, Hamilton High School, since 1988 has opened its campus to the community for recreational purposes after school hours, not on a volunteer basis, but in accordance with the mandates of
The gymnasium in question was also opened to the community, but only if a qualified person was there to oversee its use.
No fee was charged for the use of the gymnasium.
The injury occurred in the evening.
The workout was not required.
Other students and general community members were present and using the equipment the evening of the accident.
Acosta, during the off-season, worked out at other places besides defendant‘s school.
Students who wanted to improve their gymnastics skills usually worked out during the off-season.
Lewis Thomas, a firefighter and experienced gymnast, volunteered his time to work out with individuals interested in gymnastics.
Lewis Thomas volunteered his time at Hamilton High School and other locations.
Lewis Thomas had been requested to volunteer his time by one David Lertzman, one of the coaches at Hamilton High School.
Lewis Thomas was present at the time of the incident.
It is my opinion that the above facts give rise to a factual dispute which requires resolution by the trier of fact, and it is error for the majority to decide the issue as one of pure law.
I do not take issue with the reasoning of the majority that
Accordingly, I would affirm the judgment of the trial court in its entirety.
A petition for a rehearing was denied February 2, 1995. Woods, J., was of the opinion that the petition should be granted. The petition of appellant Los Angeles Unified School District for review by the Supreme Court was denied April 13, 1995. Lucas C. J., and Mosk, J., were of the opinion that the petition should be granted.
Notes
We also note other states imposing a duty to supervise interscholastic athletics have not differentiated between practices held during the season and practices held off-season. (See, e.g., Leahy v. School Bd. of Hernando County, supra, 450 So.2d 883 and Rutter v. Northeastern Beaver Cty., etc., supra, 437 A.2d 1198 [both involving preseason training and practice].)