JOSE LUIS AVILA, Plaintiff and Appellant, v. CITRUS COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.
No. S119575
Supreme Court of California
Apr. 6, 2006.
38 Cal. 4th 148 | 131 P.3d 383 | 41 Cal. Rptr. 3d 299
COUNSEL
Law Offices of Alan E. Wisotsky and Brian P. Keighron for Plaintiff and Appellant.
Gibeaut, Mahan & Brisco, Gary Robert Gibeaut, John W. Allen and Lisa J. Brown for Defendant and Respondent.
OPINION
We are asked to make calls on two questions: (1) Does
FACTUAL AND PROCEDURAL BACKGROUND
Jose Luis Avila, a Rio Hondo Community College (Rio Hondo) student, played baseball for the Rio Hondo Roadrunners. On January 5, 2001, Rio Hondo was playing a preseason road game against the Citrus Community College Owls (Citrus College). During the game, a Roadrunners pitcher hit a Citrus College batter with a pitch; when Avila came to bat in the top of the next inning, the Citrus College pitcher hit him in the head with a pitch, cracking his batting helmet. Avila alleges the pitch was an intentional “beanball” thrown in retaliation for the previous hit batter or, at a minimum, was thrown negligently.
Avila staggered, felt dizzy, and was in pain. The Rio Hondo manager told him to go to first base. Avila did so, and when he complained to the Rio Hondo first base coach, he was told to stay in the game. At second base, he still felt pain, numbness, and dizziness. A Citrus College player yelled to the Rio Hondo dugout that the Roadrunners needed a pinch runner. Avila walked off the field and went to the Rio Hondo bench. No one tended to his injuries. As a result, Avila suffered unspecified serious personal injuries.
Avila sued both
The District demurred, contending it was protected by
A divided Court of Appeal reversed. Relying on Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471 [37 Cal.Rptr.2d 171] (Acosta) and Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218 [38 Cal.Rptr.2d 35] (Iverson), the majority concluded that
We granted the District‘s petition for review to resolve an apparent split in the Courts of Appeal concerning the scope of
DISCUSSION
I. Section 831.7 Immunity
As always, we begin our analysis of a statute‘s meaning with its text. (Elsner v. Uveges (2005) 34 Cal.4th 915, 927 [22 Cal.Rptr.3d 530, 102 P.3d 915].)
The text is ambiguous. The statute does not specifically define “recreational activity,” but instead includes a definition for “hazardous recreational activity.” That definition defines and illustrates what is meant by the term “hazardous,” while merely reusing the phrase “recreational activity.” (
This ambiguity is reflected in the disparate conclusions the Courts of Appeal have reached when applying the statutory language to negligence claims against schools and universities. For example, in Acosta, supra, 31 Cal.App.4th 471, a high school gymnast was practicing
In Iverson, supra, 32 Cal.App.4th 218, an eighth-grade student was injured by a hard tackle during a physical education class soccer game. Here again, the court rejected
In contrast, in Ochoa, supra, 72 Cal.App.4th 1300, a California State University, Sacramento (Sacramento State) student was injured in an intramural soccer game. Escalating roughness culminated in one player throwing a punch, catching plaintiff Ochoa in the jaw. Ochoa sued Sacramento State for negligently failing to supervise the game. The trial court granted Sacramento State‘s motion for summary judgment and the Court of Appeal affirmed, concluding that
In the absence of an unambiguous plain meaning, we must look to extrinsic sources such as legislative history to determine the statute‘s meaning. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977 [90 Cal.Rptr.2d 260, 987 P.2d 727].) Our review of the legislative history of
In the late 1970‘s, a split of authority developed over whether
While Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, was still pending in this court, Assemblyman Robert Campbell responded to the uncertainty by introducing Assembly Bill No. 555 (1983–1984 Reg. Sess.), which proposed new
Thus,
Separate and apart from the body of law governing premises liability claims, another body of law establishes that public schools and universities owe certain non-property-based duties to their students. Public schools have a duty to supervise students (
have been recognized to have both before and after passage of
As noted, the legislative history demonstrates the Legislature had in mind immunizing public entities from liability arising from injuries sustained by members of the public during voluntary unsupervised play on public land, in order to prevent public entities from having to close off their land to such use to limit liability. Such activities may be fairly characterized as recreational. Sports in the school environment, in contrast, are not “recreational” in the sense of voluntary unsupervised play, but rather part and parcel of the school‘s educational mission. “It can no longer be denied that extracurricular activities constitute an integral component of public education.” (Hartzell v. Connell (1984) 35 Cal.3d 899, 909 [201 Cal.Rptr. 601, 679 P.2d 35].) “They are ‘[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin . . . .‘” (Ibid., italics added.) Interscholastic athletics are a fundamental, integral part of public education.4 Through high school, participation in physical education classes is mandatory. (
The paramount goal of statutory interpretation is to “ascertain the intent of the drafters so as to effectuate the purpose of the law.” (Esberg v. Union Oil Co. (2002) 28 Cal.4th 262, 268 [121 Cal.Rptr.2d 203, 47 P.3d 1069].) Nothing in the legislative history indicates the Legislature ever contemplated or intended that passage of
Thus, we conclude that school sports in general, and organized intercollegiate games in particular, are not “recreational” within the meaning of the statute.5 Avila was injured while participating in an intercollegiate baseball game.
II. The Duty of Care Owed College Athletes
A. Primary Assumption of the Risk and the Duty Not to Increase Risks Inherent in a Sport
The District asserted as an alternate basis for demurrer that it owed Avila no duty of care. To recover for negligence, Avila must demonstrate, inter alia, that the District breached a duty of care it owed him. Generally, each person has a duty to exercise reasonable care in the circumstances and is liable to those injured by the failure to do so. (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561].) By statute, the Legislature has extended this common law standard of tort liability to public employees (
The existence of “‘duty’ is not an immutable fact of nature ‘but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.‘”
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 [63 Cal.Rptr.2d 291, 936 P.2d 70].) Thus, the
The traditional version of the assumption of risk doctrine required proof that the plaintiff voluntarily accepted a specific known and appreciated risk. (Prescott v. Ralph‘s Grocery Co. (1954) 42 Cal.2d 158, 161-162 [265 P.2d 904], citing Rest., Torts, § 893.) The doctrine depended on the actual subjective knowledge of the given plaintiff (Shahinian v. McCormick (1963) 59 Cal.2d 554, 567 [30 Cal.Rptr. 521, 381 P.2d 377]) and, where the elements were met, was an absolute defense to liability for injuries arising from the known risk (Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 731 [46 P.2d 144]).
California‘s abandonment of the doctrine of contributory negligence in favor of comparative negligence (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226]) led to a reconceptualization of the assumption of risk. In Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight), a plurality of this court explained that there are in fact two species of assumption of risk: primary and secondary. (
Here, the host school‘s role is a mixed one: its players are coparticipants, its coaches and managers have supervisorial authority over the conduct
of the game, and other representatives of the school are responsible for the condition of the playing facility. We have previously established that coparticipants have a duty not to act recklessly, outside the bounds of the sport (Knight, supra, 3 Cal.4th at pp. 318-321), and coaches and instructors have a duty not to increase the risks inherent in sports participation (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1005-1006); we also have noted in dicta that those responsible for maintaining athletic facilities have
In interscholastic and intercollegiate competition, the host school is not a disinterested, uninvolved party vis-à-vis the athletes it invites to compete on its grounds. Without a visiting team, there can be no competition. Intercollegiate competition allows a school to, on the smallest scale, offer its students the benefits of athletic participation and, on the largest scale, reap the economic and marketing benefits that derive from maintenance of a major sports program.7 These benefits justify removing a host school from the broad class of those with no connection to a sporting contest and no duty to the participants. In light of those benefits, we hold that in interscholastic and intercollegiate competition, the host school and its agents owe a duty to home and visiting players alike to, at a minimum, not increase the risks inherent in the sport. Schools and universities are already vicariously liable for breaches by the coaches they employ, who owe a duty to their own athletes not to increase the risks of sports participation. (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1005-1006.) No reason appears to conclude intercollegiate athletics will be harmed by making visiting players, necessary coparticipants in any game, additional beneficiaries of the limited duty not to increase the risks of participation. Thus, we disagree with the Court of Appeal dissent, which argued that the District is little more than a passive provider of facilities and therefore should have no obligation to visiting players.
The District relies on cases establishing that colleges and universities owe no general duty to their students to ensure their welfare. (Crow v. State of California, supra, 222 Cal.App.3d at p. 209; Baldwin v. Zoradi, supra, 123 Cal.App.3d at pp. 287-291.) We have no quarrel with these cases. Nor do we
have occasion to decide what duties a college or university might owe in the context of intracollegiate competition, as with the intramural competition at issue in Ochoa, supra, 72 Cal.App.4th 1300, also relied upon by the District. The duty of a host school to its own and visiting players in school-supervised athletic events is an exception to the general absence of duty, an exception plainly warranted by the relationship of the host school to all the student participants in the competitions it sponsors.
B. Application
We consider next whether Avila has alleged facts supporting breach of the duty not to enhance the inherent risks of his sport. Though it numbers them differently, Avila‘s complaint in essence alleges four ways in which the District breached a duty to Avila by: (1) conducting the game at all; (2) failing to control the Citrus College pitcher; (3) failing to
With respect to the first of these, conducting the game, Avila cites unspecified “community college baseball rules” prohibiting preseason games. But the only consequence of the District‘s hosting the game was that it exposed Avila, who chose to participate, to the ordinary inherent risks of the sport of baseball. Nothing about the bare fact of the District‘s hosting the game enhanced those ordinary risks, so its doing so, whether or not in violation of the alleged rules, does not constitute a breach of its duty not to enhance the ordinary risks of baseball. Nor did the District owe any separate duty to Avila not to host the game.
The second alleged breach, the failure to supervise and control the Citrus College pitcher, is barred by primary assumption of the risk. Being hit by a pitch is an inherent risk of baseball. (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 51-52 [72 Cal.Rptr.2d 337]; see also Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734 [289 P.2d 282] [same regarding being hit by thrown ball].) The dangers of being hit by a pitch, often thrown at
speeds approaching 100 miles per hour, are apparent and well known: being hit can result in serious injury or, on rare tragic occasions, death.9
Being intentionally hit is likewise an inherent risk of the sport, so accepted by custom that a pitch intentionally thrown at a batter has its own terminology: “brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for throwing at hitters are “headhunters.” Pitchers intentionally throw at batters to disrupt a batter‘s timing or back him away from home plate, to retaliate after a teammate has been hit, or to punish a batter for having hit a home run. (See, e.g., Kahn, The Head Game (2000) pp. 205-239.) Some of the most respected baseball managers and pitchers have openly discussed the fundamental place throwing at batters has in their sport. In George Will‘s study of the game, Men at Work, one-time Oakland Athletics and current St. Louis Cardinals manager Tony La Russa details the strategic importance of ordering selective intentional throwing at opposing batters, principally to retaliate for one‘s own players being hit. (Will, Men at Work (1990) pp. 61-64.) As Los Angeles Dodgers Hall of Fame pitcher Don Drysdale and New York Giants All Star pitcher Sal “The Barber” Maglie have explained, intentionally throwing at batters can also be an integral part of pitching tactics, a tool to help get batters out by upsetting their frame of
While these examples relate principally to professional baseball, “[t]here is nothing legally significant . . . about the level of play” in this case. (West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 359-360 [116 Cal.Rptr.2d 849]; see Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at pp. 51-52; Mann v. Nutrilite, Inc., supra, 136 Cal.App.2d at p. 734.) The laws of physics that make a thrown baseball dangerous and the
strategic benefits that arise from disrupting a batter‘s timing are only minimally dependent on the skill level of the participants, and we see no reason to distinguish between collegiate and professional baseball in applying primary assumption of the risk.
It is true that intentionally throwing at a batter is forbidden by the rules of baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); Nat. Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d), p. 62.) But “even when a participant‘s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.” (Knight, supra, 3 Cal.4th at pp. 318-319.) It is one thing for an umpire to punish a pitcher who hits a batter by ejecting him from the game, or for a league to suspend the pitcher; it is quite another for tort law to chill any pitcher from throwing inside, i.e., close to the batter‘s body—a permissible and essential part of the sport—for fear of a suit over an errant pitch. For better or worse, being intentionally thrown at is a fundamental part and inherent risk of the sport of baseball.11 It is not the function of tort law to police such conduct.
In Knight, supra, 3 Cal.4th at page 320, we acknowledged that an athlete does not assume the risk of a coparticipant‘s intentional
The dissent suggests primary assumption of the risk should not extend to an intentional tort such as battery and that Avila should have been granted leave to amend to allege a proper battery claim. (Conc. & dis. opn. post, at pp. 171, 173.) Amendment would have been futile. Absence of consent is an element of battery. (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45-46 [31 Cal.Rptr.2d 259].) “One who enters into a sport, game or contest may be taken to consent to physical contacts consistent with the understood rules of the game.” (Prosser & Keeton, Torts (5th ed. 1984) § 18, p. 114; see also Knight, supra, 3 Cal.4th at p. 311 [“It may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity or sport ‘consents to’ or ‘agrees to assume’ the risks inherent in the activity“]; Ritchie-Gamester v. City of Berkley (Mich. 1999) 461 Mich. 73 [597 N.W.2d 517, 523] [“The act of stepping onto the field may be described as ‘consent to the inherent risks of the activity’ “].) Thus, the boxer who steps into the ring consents to his opponent‘s jabs; the football player who steps onto the gridiron consents to his opponent‘s hard tackle; the hockey goalie who takes the ice consents to face his opponent‘s slapshots; and, here, the baseball player who steps to the plate consents to the possibility the opposing pitcher may throw near or at him. The complaint establishes Avila voluntarily participated in the baseball game; as such, his consent would bar any battery claim as a matter of law.
The third way in which Avila alleges the District breached its duty of care, by failing to provide umpires, likewise did not increase the risks inherent in the game. Baseball may be played with umpires, as between professionals at the World Series, or without, as between children in the sandlot. Avila argues that providing umpires would have made the game safer, because an umpire might have issued a warning and threatened ejections after the first batter was hit. Whatever the likelihood of this happening and the difficulty of showing causation, the argument overlooks a key point. The District owed “a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.” ( Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at p. 52; accord, West v. Sundown Little League of Stockton, Inc., supra, 96 Cal.App.4th at p. 359.) While the provision of umpires might—might—have reduced the risk of a retaliatory beanball, Avila has alleged no facts supporting imposition of a duty on the District to reduce that risk.
Finally, Avila alleges that the District breached a duty to him by failing to provide medical care after he was injured. Relying on Brooks v. E. J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669 [255 P.2d 802] (Brooks), he argues that because the District placed him in peril through the actions of the Citrus College pitcher, it had a duty to ensure he received medical attention.
In some circumstances, the common law imposes a duty on those who injure others to mitigate the resulting harm. Under the Restatement Second of Torts, section 322, an actor who “knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm . . . is under a duty to exercise reasonable care to prevent such further harm.” (Boldface omitted.) In Brooks, we recognized and applied this principle, holding in the context of a hit-and-run death that “[o]ne who negligently injures another and renders him helpless is bound to use reasonable care to prevent any further harm which the actor realizes or should realize threatens the injured person.” (Brooks, supra, 40 Cal.2d at pp. 678-679.)
Avila‘s proposed extension of Brooks to this case encounters at least three main difficulties. First, Avila has not alleged a basis on which to conclude the District caused his injury. Universities ordinarily are not vicariously liable for the actions of their student-athletes during competition. (Townsend v. State of California (1987) 191 Cal.App.3d 1530, 1536-1537 [237 Cal.Rptr. 146] [university not vicariously liable for actions of its basketball player]; see also Fox v. Bd. of Sup‘rs of La. State Univ. (La. 1991) 576 So.2d 978, 982-983 [no vicarious liability for actions of rugby club]; Kavanagh v. Trustees of Boston University (2003) 440 Mass. 195 [795 N.E.2d 1170, 1174-1176] [no vicarious liability for actions of basketball player]; Hanson v. Kynast (1986) 24 Ohio St.3d 171 [24 Ohio B. 403, 494 N.E.2d 1091, 1096] [no vicarious liability for actions of lacrosse player].) While Avila argues the District should be responsible for the Citrus College pitcher‘s conduct if the Citrus College coaches ordered or condoned a retaliatory pitch, the complaint notably lacks any allegation they did so.
Second, even if Avila might have amended his complaint to add such an allegation, Brooks and the common law duty it recognizes are confined to situations where the injured party is helpless. The complaint establishes that Avila was able to make it to first and then second base under his own power, and was able to alert his own first base coach to his condition. These allegations cast serious doubt on whether Avila was sufficiently helpless so as to warrant imposing a Brooks/Restatement Second of Torts, section 322-type duty on the District.
Third, even if we were to impose a duty, the face of the complaint establishes that Avila‘s own Rio Hondo coaches and trainers were present. They, not Citrus College‘s coaches, had exclusive authority to determine whether Avila needed to be removed from the game for a pinch runner
DISPOSITION
For the foregoing reasons, we reverse the judgment of the Court of Appeal.
George, C. J., Baxter, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
KENNARD, J., Concurring and Dissenting.—I concur in part I of the majority opinion. There, the majority correctly holds that the statutory immunity conferred on public entities for an injury occurring during a “hazardous recreational activity” (
I do not, however, join part II of the majority opinion. There, the majority holds that a baseball pitcher owes no duty to refrain from intentionally throwing a baseball at an opposing player‘s head. This is a startling conclusion. It is contrary to the official view in the sport that such conduct “should be—and is—condemned by everybody.” (Off. Rules of Major League Baseball, rule 8.02(d), off. coms.)
Central to the majority‘s holding is its reliance on the legal rule that there is no duty to avoid risks “inherent” in a recreational sport.1 This rule had its inception in this court‘s plurality opinion in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696], and it was later embraced by a majority of this court in Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 [4 Cal.Rptr.3d 103, 75 P.3d 30]. Unlike good wine, this rule has not
improved with age. I have repeatedly voiced my disagreement with this court‘s adoption of that rule, which is “tearing at the fabric of tort law” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1075 [68 Cal.Rptr.2d 859, 946 P.2d 817] (conc. opn. of Kennard, J.); see also Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1021-1022 (conc. & dis. opn. of Kennard, J.)), because it “distort[s] the negligence concept of due care to encompass reckless and intentional conduct.” (Cheong, supra, at p. 1075 (conc. opn. of Kennard, J.).) Moreover, because the question of what is “inherent” in a sport is amorphous and fact-intensive, it is impossible for trial courts “to discern, at an early stage in the proceedings, which risks are inherent in a
I
Citrus Community College hosted a team from Rio Hondo Community College to compete in a baseball game. (Both schools are located in Southern California.) Because this was a preseason practice game, there was no umpire. Shortly after the Rio Hondo pitcher hit a Citrus player with a pitched ball, the Citrus pitcher, allegedly in retaliation, hit Rio Hondo player Jose Luis Avila in the head with a pitch. Avila suffered unspecified injuries.
Avila sued the Citrus Community College District (the District) and other parties not relevant here, alleging causes of action for general negligence, premises liability, products liability, and intentional tort. As pertinent here, Avila asserted the District was liable for (1) conducting an illegal preseason game in violation of community college rules, (2) failing to supervise and control the Citrus pitcher, (3) failing to provide umpires or other supervisory personnel to prevent reckless and retaliatory pitching, and (4) failing to summon medical care after Avila was hurt.3
The District demurred. Curiously, it made no mention of the no-duty-for-sports rule. Rather, the District asserted that it was not liable under
II
The first, third, and fourth of the legal theories alleged in Avila‘s complaint can be disposed of without resort to the no-duty-for-sports rule.
Avila‘s first theory of liability (that the District conducted an illegal preseason game) fails because, as the majority explains, the District did not breach any duty to Avila by conducting the game, irrespective of whether community college rules permitted it to be played. Avila‘s third theory (that the District failed to provide umpires) must be rejected because baseball games are often played without umpires, and there is no reason to impose on
Avila‘s second theory of liability (that the District failed to supervise and control the Citrus pitcher) presents a more difficult question. As the majority notes, colleges “ordinarily are not vicariously liable for the actions of their student-athletes during competition.” (Maj. opn., ante, at p. 167.) Although Avila now argues that the District would be liable if its coaches ordered or allowed a retaliatory pitch aimed at Avila‘s head, his complaint does not expressly allege that they did so. Thus, his failure to do so justifies the trial court‘s decision to sustain the District‘s demurrer. But the trial court should have given Avila at least one opportunity to amend his original complaint to include such an allegation. (See generally 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 944, p. 402 [“An amendment should be allowed where the defect, though one of substance, may possibly be cured by supplying omitted allegations, and the plaintiff has not had a fair opportunity to do so, as where the demurrer was sustained to his first complaint.“].)
The majority, however, upholds the trial court‘s sustaining of the District‘s demurrer without leave to amend. Relying on the no-duty-for-sports rule, the majority, in essence, concludes that even if the District‘s coaches had ordered the Citrus pitcher to hit Avila in the head with a pitched ball, the District is not liable for Avila‘s injuries because the risk that a batter will be injured by a pitch intentionally thrown at his head is “an inherent risk of the sport.” (Maj. opn., ante, at p. 164.) According to the majority, “[s]ome of the most respected baseball managers and pitchers have openly discussed the fundamental place [that] throwing at batters has in their sport.” (Ibid.) The majority acknowledges that those comments were made in the context of professional baseball. The majority then proceeds to hold that throwing at batters is a risk as inherent in college baseball as it is in professional baseball. My concerns are threefold.
First, the determination whether being hit by a pitched ball intentionally aimed at one‘s head is an inherent risk of baseball, whether professional or intercollegiate, is a question of fact to be determined in the trial court. “It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.] This rule reflects an ‘essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .‘” (In re Zeth S. (2003) 31 Cal.4th 396, 405 [2 Cal.Rptr.3d 683, 73 P.3d 541], italics added.) Here, the trial court never heard, and thus never considered, the comments from professional baseball managers and pitchers on which the majority relies; indeed, not only did the District offer no evidence on this issue, but the District did not even argue that Avila‘s complaint was barred by the no-duty-for-sports rule. Undeterred, the majority has done its own research and made its own factual findings on this issue, thus invading the province of the trial court.
Had Avila been given the opportunity in the trial court, he might well have called expert witnesses who could have refuted the majority‘s factual determination that aiming at a batter‘s head is inherent in professional baseball. And he could have pointed to the official comments accompanying Major League Baseball‘s rule 8.02(d), which prohibits pitchers from trying to hit the batter: “To pitch at a batter‘s head is unsportsmanlike and highly dangerous. It should be—and is—condemned by everybody. Umpires should act without hesitation in enforcement of this rule.” (Off. Rules of Major League Baseball, rule 8.02(d), off. coms.)
Alternatively, Avila could have called expert witnesses to refute the majority‘s finding, which is unsupported by any citation of authority, that the conduct in question is as inherent in intercollegiate baseball as it is in professional baseball. And he could have pointed out that, unlike the rules of professional baseball, the rules of the National Collegiate Athletic Association provide that a pitcher who intentionally throws at a batter is not only ejected from the game in which the pitch was thrown, but is also suspended for the team‘s next four games, and a pitcher who intentionally throws at a batter on three occasions must be suspended for the remainder of the season. (Nat. Collegiate Athletic Assn., NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d).)
I turn to my second concern. This matter is here after an appeal from the trial court‘s order sustaining a demurrer. A demurrer “tests the pleading alone, and . . . lies only where the defects appear on the face of the pleading.” (5 Witkin, Cal. Procedure, supra, Pleading, § 900, p. 358.) It raises only questions of law. (Id., at p. 357.) But by relying on the no-duty-for-sports rule to hold that the District‘s demurrer was properly sustained, the majority imposes on trial courts the obligation to decide—in ruling on a demurrer—a question of fact: that is, whether a particular sports injury arises from an activity inherent in the game. Questions of fact cannot be decided on demurrer, however; they must be decided on summary judgment or at trial. Thus, the no-duty-for-sports rule is unworkable because it forces trial courts to decide questions of fact at the demurrer stage when the only method available to them is suitable only for deciding questions of law.
My third concern is that the majority‘s application of the no-duty-for-sports rule to include pitches intentionally thrown at a batter‘s head is an ill-conceived expansion of that rule into intentional torts. In Knight, the plaintiff alleged only that the defendant acted negligently (Knight v. Jewett, supra, 3 Cal.4th at p. 318), and the plurality there justified the no-duty-for-sports rule with the comment that a baseball player should not be held liable “for an injury resulting from a carelessly thrown ball or bat during a baseball game” (ibid., italics added). Here, however, the majority applies
I would analyze Avila‘s claim under the traditional doctrine of assumption of risk. Under that doctrine, the pertinent inquiry is not what risk is inherent in a particular sport; rather, it is what risk the plaintiff consciously and voluntarily assumed. That issue, as I explained earlier, is not one involving a duty of care owed to another, to be resolved on demurrer; rather, it is an affirmative defense, to be resolved on summary judgment or at trial.
Under traditional assumption-of-risk analysis, “sports participants owe each other a duty to refrain from unreasonably risky conduct that may cause harm.” (Comment, Looking Beyond the Name of the Game: A Framework for Analyzing Recreational Sports Injury Cases, supra, 34 U.C. Davis L.Rev. at p. 1060.) Intentionally hitting another person in the head with a hard object thrown at a high speed is highly dangerous and is potentially tortious, no matter whether the object is a ball thrown on a baseball field or is a rock thrown on a city street. Thus, if the District here was complicit in a decision by the pitcher to hit Avila in the head with the baseball, it may be held liable for Avila‘s injuries if Avila did not assume the risk that the pitcher would hit him in this manner. But, as I explained earlier, Avila has thus far not alleged that coaches employed by the District either advised or condoned any such act. Thus, the trial court properly sustained the District‘s demurrer; but Avila should be given leave to amend his original complaint to allege that the District was legally responsible for the pitcher‘s decision to aim the baseball at Avila‘s head.
If Avila were to amend his complaint to allege the District‘s complicity in the pitcher‘s decision to hit him in the head with the baseball, the District should be permitted to deny liability on the ground that Avila assumed the risk of an intentional hit in the head during the game: that is, he “voluntarily accepted [that] risk with knowledge and appreciation of that risk.” (Knight v. Jewett, supra, 3 Cal.4th at p. 326 (dis. opn. of Kennard, J.).) Whether Avila assumed that risk is a question of fact that has no bearing on the District‘s duty of care toward Avila. Therefore, it cannot be decided on demurrer, but should be decided on a motion for summary judgment or at trial.
I would remand the matter to the Court of Appeal, and have that court direct the trial court to sustain Avila‘s demurrer with leave to amend the original complaint.