*1 Dist., One. Mar. 1996.] Div. A067320.First [No. BUSHNELL, Plaintiff Appellant, B. GARY CENTER, AND CULTURAL RELIGIOUS
JAPANESE-AMERICAN al., Defendants and Respondents. CLUB et JUDO CONCORD *3 Counsel
Jacobs, and James P. & Milton Jacobs Spotswood, Casper Murphy, Molinelli, Jr., for Plaintiff and Appellant.
Gilles, Nicora, for Defendants Minor & Sullivan and J. Minor Timothy Respondents.
Opinion
Gary Bushnell
STEIN,
while
leg
attempting
per
suffered a broken
J.
class
form an exercise
at the
judo
Japanese-American Religious
during
Center,
be
(Hereafter
Judo
the defendants will
Cultural
Concord
Club.
Club.)
Bushnell’s
exercise
partner
referred to
collectively
Club,
Tamori, an
at the
instructor
activities
evening’s
Tamori, the
Club’s director and head
instruction
George
supervised by
trial
Club on
summary judgment
Club. The
court granted
as defined in Knight
that the defense of
risk
theory
P.2d
Jewett
Standard Review a must “as To be entitled to defendant establish summary judgment, action a matter law” that asserted causes of can prevail. none plaintiff’s Proc., 437c, 46 (Code (c); (1988) subd. Assn. Holy Civ. Molko Spirit § 1092, 122, do 46].) Cal.3d 1107 762 P.2d “A defendant may Cal.Rptr. [252 as to of action a matter of establishing, undisputed so cause by particular fact, does (1) that elements of that cause action either one of necessary exist, (2) that defense to that cause of action. not it has complete (LaRosa (1981) Cal.Rptr. Court 122 744 Superior Cal.App.3d [176 224].) risk is Since existence the primary assumption [1 of a and is an issue existence since dependent legal duty, upon court, the defense amenable law to be decided of that applicability (Freeman (1994) v. Hale 30 judgment. resolution by summary [Citation.]” 418].) the evidence On review Cal.Rptr.2d 1395 [36 (Saldana novo v. Globe-Weis are considered de arguments parties’ 385]), 1511-1513 Systems Cal.App.3d Cal.Rptr. Co. [285 the moving party’s papers court shall construe “strictly and the reviewing raise to determine if they those of the party construe liberally opposing (1992) (Stimson v. Carlson of material fact.” a triable issue of this 1201,1205 670].) the relevant facts in light We relate standard.
Facts is the director Tamori judo. George The Club instruction provides instructor. Club. Daniel Tamori is a volunteer of instruction at the head Bushnell, attending judo had been old at the time of his injury, 35 years “tai one Bushnell was practicing on a basis for about weekly year. classes throw, training. maneuver learned early judo otoshi” a relatively simple meaning Tamori was as Bushnell’s acting practice partner, thrown, or to some extent would “jump” Tamori would allow himself to be and Tamori worked the throw. As the class Bushnell through progressed the exercise and more to work up more quickly, attempting performing the maneuver full Bushnell successfully approximately speed. completed however, he On his last evening. attempt, two dozen times throughout to break. fell or was driven backwards over his left leg, causing leg how the oc- Bushnell nor else could state anyone exactly Neither *5 in the result of curred. Bushnell that the was at least part speculates injury the at which Daniel Tamori him. speed approached
Discussion rule, of care to avoid As a have a general persons others, if another injures be held liable their careless conduct may Code, 1714; (Civ. Rowland v. Christian Cal.2d 108 person. § 496].) The 443 P.2d 32 A.L.R.3d doctrine Cal.Rptr. in supra, of the risk as defined the court Knight rule, in that recognizing
Cal.4th acts as a limitation to this general that the defendant certain situations the nature of the at issue is such activity the due care. In Knight, does not owe a to the to act with legal duty plaintiff the defendant was a touch football when game injured during held that “in the heat her on her hand. The court knocked down stepped football, a normal of an active event like baseball or participant’s sporting . . careless behavior. . conduct often includes energetic accidentally [E]ven and may subject conduct violates a rule of the game when a participant’s , for such liability of legal violator to internal sanctions . . . imposition deterring the nature of the sport by conduct well alter might fundamentally to, on falls close but in that activity from vigorously engaging participants 318-319, of, (Knight, side rule.” permissible prescribed it is to hold a The court concluded “that sports italics in original.) improper conduct to a for careless committed ordinary liable participant coparticipant for from a carelessly an injury resulting during sport—for example, liability may or bat a baseball that game—and properly thrown ball during intentionally injures on a when he or she another imposed only be participant in is outside totally range or reckless conduct that engages player involved in the The rationale behind ordinary sport.” activity in cases the notion is liability sports grounded excusing participants interfere with would inhibit the natural legal liability play game, essential nature. fervor of the and alter game’s natural participants (Id. at pp. of risk has to be
The full of the defense of primary assumption yet scope Nonetheless, the doctrine have established. the cases that have considered we can here. The doctrine applied established some principles apply in a because the defendant was a coparticipant competitive part doctrine, however, turn on whether the The of the does not sport. application at issue competi defendant was whether coparticipant activity Rather, in all the nature of the tive than cases rather co-operative. and the relationship of the defendant to activity, activity then deter of the must be examined. It must be defendant mined, whether the defend of the and these activity light relationships, “inherent of the such that activity liability ant’s conduct at issue is an risk” attach when the does not as a matter of law. General rules attach or when defendant’s conduct not an inherent risk A defendant the inherent risks in the activity. defendant’s conduct increased as will also with the to take such charged precautions prevent be the risk without effect on nature having held that a ski could not be example, court resort Knight explained, *6 run the challenge liable for to eliminate on a ski because failing moguls Nonetheless, risks are of skiing. posed by moguls part sport have a to use due care not to increase the because defendants generally duty a resort risks to a over and above those inherent in the ski sport, participant safe, a due its in a does have to use care to maintain “clearly towropes duty so to an increased risk of harm.” condition as not to skiers working expose (3 a does not Cal.4th at For similar reasons baseball player a a bat but the owner of the stadium carelessly, have to avoid duty throwing will have a to take such as duty precautions reasonably protect specta (3 from thrown bats. Cal.4th at tors from injuries resulting carelessly (1938) 27 Club Diego the decision in v. San Baseball discussing Ratcliff 625].) If to required pay P.2d the baseball player Cal.App.2d suffer, would adversely to the game the bat his attention attention to screen, a an owner to erect the nature of the activity. Requiring affecting so as however, the nature of the activity long play could not affect adversely and baseball In both the ski resort examples, the screen. through can be seen from a taken protect plaintiff is whether precaution question in interfere with the activity with due care—would injury—including acting so, liability, cannot result in the failure to take precaution If question. inherent of the activity. the risk is an part because even if the defend of risk can The doctrine of apply in a better in control of the situation and thus ant was in some manner In Ford Gouin injury. than the to prevent plaintiff’s position plaintiff 834 P.2d 34 A.L.R.5th (1992) 3 Cal.4th 339 [11 water-skier, case to Knight, experienced companion under an branch while water-skiing when he was overhanging injured pulled that unlike the of touch barefoot and backwards. The court noted The is not but waterskiing cooperative. football Knight, competitive, direction of the defendant to some extent controlled the plaintiff. speed however, follow, that the defendant owed a It did not even if the be attributed to injury might injury, protect issue, Court held that the as defendant’s careless conduct. Supreme in the be chilled might is whether Knight, vigorous participation sport simply on a liability if attached for careless conduct. “Imposition legal turn, too a ski boat driver for negligence making sharp ordinary have or in too or too would slowly, likely skier example, pulling rapidly conduct that the the same kind of undesirable effect on the driver’s in other feared would inhibit conduct in various ordinary sports. courts cases result, liable for their ordinary negligence As ski boat drivers holding well effect on the nature of the sport have a deleterious might generally well such liability might as a whole. waterskiing Additionally, imposing risky one another in such deter friends from voluntarily assisting potentially rule of care of copartic sports. Accordingly, general limiting of intentional and reckless miscon in active to the avoidance ipant sports duct, but active sports engaged noncompetitive applies participants such driver a water-skier. Under principles ski boat activity, towing Knight, summary judgment properly defendant was in favor of set forth entered.” at p. *7 authorities, injuries
In of we conclude that Bushnell’s these light Knight to him. As in both were not the result of the breach of owed any duty addition, Ford, the uncon and in an active sport. Bushnell was engaged his by working he to skills improve tradicted evidence is that was attempting 532 the activity
more and more “tai otoshi” maneuver. That through quickly course, and, to move Daniel Tamori’s assistance Tamori required required more is no or that Tamori acted allegation more and There evidence quickly. rather, an intent to Bushnell’s theory, with cause recklessly injury. Tamori had to be that Daniel moved more than Bushnell quickly appears at which would or that Tamori miscalculated the Bushnell speed expected, We cannot the in such liability be able sanction respond. imposition effect that and causing chilling Knight circumstances without type caution Instruction such as activity necessarily Ford an against. judo move, or a student to move more a new attempt requires pushing quickly, have attempted. take some other action that student not previously can an ask a student to do more than the student That instructor might recklessness, an of the evidence of is inherent risk Absent manage activity. conduct, not be or other should risk-increasing liability imposed simply what, action with because an asked student to take beyond instructor otherwise is found to have been student’s abilities. To hold hindsight, stretch, thus to would instructors from students and discourage requiring learn, whole. deleterious effect on as a would have generally sport Goddard,
Bushnell, Galardi Tan v. 13 1528 and supra Cal.App.4th citing Club, v. Seahorse contends that because Riding the situation one where Tamori instructors is George does Since the of the risk not defense of assumption apply. primary of the risk of the nature of the activity consideration requires itself, another, and to of the to the one parties activity relationship fact that the defendant an instructor relevant to the question liability. is is 309, 313, 317.) we (And see As Knight supra, Cal.4th Court recently recognized Regents University Superior California however, (1996) 41 a defend- can be ant does not owe a of care to the because one plaintiff simply the other a There is nothing Knight labeled instructor and student. her which it instructor of care to his or follows that an owes always and we disagree students thus becomes an insurer of their would safety, always, with Tan and Galardi if held otherwise. they question, whether, of the defendant given activity question would have a and to the imposition Indeed, effect on the conduct the nature required by do language we find that in Tan and Galardi contain although opinions be held for injuries claim that instructors liable always may supporting instruction, are reached in cases students under their decisions those enunciated with our wholly compatible understanding principles and Ford. *8 to ride He was told Tan, at a school. was a student jockey the plaintiff The instructor to be injured. instructor knew horse that the a particular the horse on to jog directed the plaintiff horse fit to ride and the pronounced horse way horse’s front legs gave track. The a rocky particularly held that the riding The court in Tan Tan’s injuries. went down causing the horse he to to it that care see ordinary “owed Tan duty instructor for he prescribed to ride under the conditions Tan to ride was safe assigned in Knight, the cited example do so is to analogous that His failure to activity. due care to maintain its towropes to use operator of the of the ski resort duty 1535-1536.) The Tan court thus (13 at in a safe condition.” (such ski activity who controls reaffirmed that party simply stadium) have a of care owner of a baseball may resort or the operator can be activity performed such that the to a safe environment provide that, absent in Tan the argument risk. unnecessary Nothing supports without who asks to cause an instructor injury, reckless conduct or an intention her will be liable in order to better his or skills student to take on a challenge challenge. to meet that the student’s failure injuries resulting and a safe track increased risk a fit animal Failing provide attach for liability might that inherent beyond activity plaintiff To look at the situation to take on the increased risk. requiring plaintiff horse and track could the defendant to a safe another way, requiring provide itself, with the nor would it interfere have no effect on the teach the student new or better skills. of the instructor to ability Club, In Galardi v. Seahorse Riding and was for an upcoming was a student at a club riding preparing without of the jumps
horse show. The instructor twice raised the height ride the student to between the and then asked lengthening space jumps, unable to make The horse was course the reverse direction. through that she sustained and threw the with the result one jumps plaintiff, held, evidence presented The court in Galardi injury. complaint “[t]he defendants, whether the trial court created a of fact concerning question who, infer, concerning sport we had knowledge experience jumps horse to that of negligently deployed jumping superior plaintiff, owed plaintiff.” unsafe or intervals and breached thereby heights had that the defendants To the extent that the court found we environment for the agree failed to a safe provide inherent increased the risk attach because the defendants thereby might If, however, attach because found that liability might the court take on new chal- asking the defendants negligent skills, that liability might we do not agree in order to her lenges improve attach, recklessly the instructor acted at least in the absence of evidence *9 words, that a intent to cause In other to the extent
or with an injury. her to take or desirable was to ask training necessary part plaintiff’s orders, the defendants and or take the in various higher jumps higher jumps were the instructors should not be liable because simply they plaintiff’s held horse, If, her could not make the and it turned out that the or jump. however, it to ask the the alteration in the course was such that was reckless unsafe), (i.e., to run it the course was now instructors breached their to use due care not to increase the risks over above those The always, inherent in the should attach. is sport, liability question, in the whether the would chill vigorous imposition participation that To instruct is to nature of is challenge, very challenge activity. who has it will not be met. It is not unreasonable always require plaintiff the risk that he or she chosen to be instructed to bear particular activity instructor, at least will not be able to meet the challenges posed by the instruc- of intentional misconduct or recklessness on the part absence their students asking tor. other rule would instructors Any discourage have a to do more than have done in the would therefore anything they past, instruction, have a on effect on and thus would negative impact instruction: very purpose seeking mastering 1973) (10th Cir. 478 F.2d College Bushnell cites Wells Colorado us; however, which in no on it a useful illustration binding way provides from an of the distinction between the risk of injuries resulting attempt in the to master the skill—which risk is inherent improve physical attempt not inherent and to which liability skill—and other of risk that are types here, Wells, like Bushnell was a student therefore attach. in a class. She was a demonstration when she judo during injured floor, mat, having and fell but a hardwood the mats thrown not onto a onto holding The district court focused on separated. plaintiff’s expectations, because “it is not shown that the defense of of risk did not apply assumption to which hazard such as that that the plaintiff anticipated extraordinary (478 161.) The knowledge she was F.2d at subjected.” plaintiff’s p. of risk in are not relevant to the defense of expectations Nonetheless, California, 315). 3 Cal.4th at (Knight the facts of the law would not the defense under California also recognize Wells case. to ensure that the mats were adequate properly By failing secured, for the activity failed to a safe environment the defendants provide and thus increased its inherent risks. conclusion, no evidence from record in the contains case present acted recklessly agents
which it be concluded that defendants or their might Further, is no evidence Bushnell. there or with the intention injure risk attending than an inherent other by anything was injured Bushnell It follows judo. the skills used to learn or improve attempting in such their employers on instructors or of liability the imposition *10 doctrine of primary The effect adversely would situations entered. was summary judgment properly risk of applies assumption is affirmed. The judgment
Strankman,
J.,P.
concurred.
that summary
The
concludes
dissent.
DOSSEE,
majority
I respectfully
J.
involves
implied
because this case
entered
was properly
judgment
view,
ante,
534-535.)
this case
In my
of risk. (Maj. opn.,
pp.
assumption
and,
is governed
of risk
accordingly,
assumption
involves secondary implied
fact must determine
Since
trier of
of
fault.
comparative
by principles
defendant’s agent
Bushnell and
Gary
of
relative responsibility
plaintiff
Tamori,
have been granted.
should not
summary judgment
2,
834 P.2d
v. Jewett
537
811, 813;
Foundations,
v.
1970)
Everett
(6th Cir.
434 F.2d
Inc.
MacFadden
653, 659];
v.
Warren,
Miller
280
N.E.2d
(1978)
Inc.
376 Mass.
Bucky
[380
itself,
666]; and 418
N.W.
(1962) 262 Minn.
College
[115
Macalester
suits against sports
to cases involving
Cal.4th at
318
3
supra,
p.
[citations
course,
not,
coaches].)
or instructor is
The coach
instructors and
Foundations, Inc.,
434 F.2d at
supra,
Bernarr MacFadden
(Stehn
insurer
and to ask
notice that which is obvious
813),
be held to
and student
26C, Malheur
District No.
(see Vendrell v. School
questions
appropriate
406].)
But all of the authorities
(1962)
the club acknowledged “[d]ue student, a but as by practice thrown being resist successfully] could thrown, instructor, be assisting allows himself to the instructor partner leg.” over the thrower’s by jumping the thrower in this process relative levels and Tamori’s in Bushnell’s Given both the gross disparity held that Tamori superior corresponding experience session, hold that Tamori had I would over Bushnell during practice and to avoid taking to Bushnell an unreasonable risk of injury to avoid (See Regents level of capability. Bushnell his beyond experience 1046; Court, at supra, Cal.App.4th p. University Superior of California Club, 823.) at “Having supra, p. v. Seahorse Riding Galardi care, which was a the breach of had such duty determined [Tamori] must be (a ultimately matter which cause possible [Bushnell’s] into the fact), category case falls necessarily the trier of this decided circumstance, it is for the trier of fact In such of risk. secondary assumption resulting and to the loss the cause of the injury apportion to determine the relative it consider responsibility in so injury; doing 315.)” (Galardi v. 3 Cal.4th supra, p. (Knight parties. Club, I Accordingly, Seahorse Riding of the club. in favor summary would reverse the judgment