Lead Opinion
Opinion
This case presents a question concerning the proper application of the doctrine of primary assumption of risk. At the time of her injury, plaintiff was a 14-year-old novice member of defendant school district’s junior varsity swim team. She was participating in a competitive swim meet when she executed a practice dive into a shallow racing pool that was located on defendant school district’s property and broke her neck. She alleged that the injury was caused in part by the failure of her coach, a district employee, to provide her with any instruction in how to safely dive into a shallow racing pool. She also alleged lack of adequate supervision and further that the coach breached the duty of care owed to her by insisting that she dive at the swim meet despite her objections, her lack of expertise, her fear of diving, and the coach’s previous promise to exempt her from diving.
In Knight v. Jewett (1992)
Applying this standard to the present case, we conclude that, on the basis of the declarations and deposition testimony filed in support of and in opposition to defendants’ motion for summary judgment, the Court of Appeal majority erred in determining that the doctrine of primary assumption of risk warranted entry of summary judgment in defendants’ favor. We conclude that the totality of the circumstances precludes the grant of defendants’ motion for summary judgment. Specifically, we refer to evidence of defendant coach’s failure to provide plaintiff with training in shallow-water diving, his awareness of plaintiff’s intense fear of diving into shallow water, his conduct in lulling plaintiff into a false sense of security by promising that she would not be required to dive at competitions, his last-minute breach of this promise in the heat of a competition, and his threat to remove her from competition or at least from the meet if she refused to dive. Plaintiff’s evidence supports the conclusion that the maneuver of diving into a shallow racing pool, if not done correctly, poses a significant risk of extremely serious injury, and that there is a well-established mode of instruction for teaching a student to perform this maneuver safely. The declarations before the trial court raise a disputed issue of fact as to whether defendant coach provided any instruction at all to plaintiff with regard to the safe performance of such a maneuver, as well as to the existence and nature of the coach’s promises and threats. Under these circumstances, the question whether the coach’s conduct was reckless in that it fell totally outside the range of ordinary activity involved in teaching or
I
On October 11, 1995, plaintiff Olivia Kahn brought this action through her mother Sandy Kahn as guardian ad litem. Plaintiff’s complaint named East Side Union High School District (District), Andrew McKay (McKay), and Does 1-10 as defendants. Plaintiff alleged generally that on October 13, 1994, she was present on the District’s property to participate in a swim meet as a member of the Mt. Pleasant High School women’s junior varsity swim team. She broke her neck while attempting a practice dive from a stаrting block into the three-and-one-half-foot-deep racing pool located at the school.
Plaintiff alleged that McKay, a District employee who was her coach on the swim team, negligently failed to train, supervise, or control the swim team members to protect them adequately against diving accidents, and that McKay negligently directed her to dive off a starting block' during competition, without giving her adequate training or supervision, thus proximately causing her injury.
After filing their answer, defendants moved for summary judgment. They contended generally that plaintiff assumed the risks inherent in the sport of competitive swimming when she voluntarily joined the swim team and dove into the pool on the day she was injured.
The declarations and the deposition transcripts that were submitted in support of and in opposition to defendants’ motion for summary judgment reveal the following facts.
Mt. Pleasant High School has a deep swimming pool used for diving and water polo, as well as a racing pool used by the school’s swim teams. The racing pool is three and a half feet deep at each end. On the deck in front of each of the six swimming lanes in this pool is a starting block standing 18
Plaintiff was a 14-year-old freshman at Mt. Pleasant High School when she joined the school’s junior varsity swim team. Two coaches were employed by the District and supervised the swimming program: defendant Andrew McKay and Kathleen Chiaramonte-Tracy. Plaintiff did not have prior experience as a competitive swimmer, but she was a competent swimmer and had executed dives into deep water on a recreational basis. She recalled that during a team practice session, coach McKay directed other team members to help her practice diving off the deck of the diving pool into deep water. Coach Chiaramonte-Tracy observed her dives, plaintiff asserted, and stated that plaintiff needed more practice. Teammates remarked that plaintiff had gone in too deep. Plaintiff had a deep-seated fear that she would suffer a traumatic head injury from diving into shallow water, and had so informed the two coaches when she joined the team in September. She alleged that during the few weeks between the commencement of the swim season and the accident, the coaches failed to offer her any instruction or training in shallow-water racing diving, nor, prior to the date of her accident, did she receive such instruction from her teammates. McKay assured her that, although three out of the four team members who participate in a relay must dive into the pool, plaintiff would not be required to dive at meets. Rather, she would be the team member who started from inside the pool. At the two or three meets that preceded the occasion on which plaintiff was injured, McKay directed plaintiff to execute the first leg of the relay race, which caused her to start in the water rather than from the deck of the pool.
Plaintiff asserted that McKay informed her, minutes before the meet was to begin on October 13, 1994, that this time he would not permit her to start her relay from inside the pool. She panicked and begged him to change the rotation so she could start in the water. She reiterated that she was afraid to dive into the shallow pool, that she did not know how to perform a racing dive, and that she never had performed one. McKay, she claimed, informed her that unless she dove off the starting block, he would not permit her to participate. (She could not recall whether he said she could not participate in the meet or could not be on the team.) She claimed that he did not give her the option of diving from the deck of the pool. Two teammates offered to show plaintiff how to perform the racing dive, and without any coach’s supervision she began to practice diving from the starting block into the shallow racing pool. Plaintiff asserted that the coaches had not directed her to refrain from practicing unless they were present. Plaintiff could see coach McKay in her peripheral vision. On her third practice dive, she broke her neck.
Plaintiff’s expert, Stanley Shulman, had been a certified water safety instructor for 40 years, had coached junior and senior high school swimming for 17 years, and had published a number of studies of swimming injuries. He stated that diving into three and a half feet of water from the deck of a pool or from a starting block is extremely dangerous, and is ultrahazardous if done by a swimmer without adequate training. The sequence of instruction laid out in the Red Cross manual should be strictly followed, he declared, and “[bjefore an inexperienced diver attempts a racing dive into a shallow pool, [he or she] should perfect the same dive off starting blocks in the deep pool. HQ The dive should be consistently done in the deep pool at a depth not exceeding two to two and a half feet before attempting it in shallow water.”
In his declaration and deposition testimony, defendant McKay explained that in a relay race, four swimmers participate and only the first swimmer may begin in the pool. The remaining swimmers must dive either from the starting block or from the side of the pool. There had been approximately three meets before plaintiff’s accident, and in each one plaintiff was the first swimmer and started from inside the pool. On the day of plaintiff’s accident, McKay informed plaintiff that she would not be swimming the first leg of the relay. He was unaware that she thereafter began practicing diving from the starting block. On the date of the accident, when he instructed plaintiff to take the second leg of the relay, he also informed her that she could dive off the pool deck if she wished. He also recalled instructing team members that they
McKay recalled that the swim team practices included diving practice twice a week and that he and Chiaramonte-Tracy did provide plaintiff training in diving. He may have demonstrated the racing dive himself, but for the most part he had plaintiff observe advanced swimmers on the team. He worked with plaintiff in a group and also individually. He followed the Red Cross training suggestions, starting plaintiff with dives into the deep diving pool until he believed she was competent to practice diving into the shallow pool. There were no starting blocks, however, at the diving pool. He recalled giving plaintiff approximately four training sessions in the deep pool and seeing her perform five to 10 dives during at least one of these practice sessions. He believed her technique in the diving pool had improved to the point that she could dive off the deck into the racing pool. He recalled seeing plaintiff dive from the deck into the racing рool at one or two practices. He believed he observed about five dives from the deck into the racing pool, and plaintiff’s performance was acceptable. He stated he also saw her go off the starting block in a racing dive into the racing pool at one of these practice sessions.
Kathleen Chiaramonte-Tracy, also a teacher employed by the District, shared coaching responsibilities for the girls’ swim team with McKay. She stated that McKay was responsible for the practices and meets and for teaching diving, and that she “facilitated” and performed administrative duties. She was present at practice, which occurred five days a week, and the only time she recalled observing plaintiff dive was “one or two times I saw her do the entry level dive off the side of the diving well.” Plaintiff went in a little too deep, according to Chiaramonte-Tracy. Nonetheless, she declared that plaintiff must have performed other dives “because of the different practice structures that were in place.” Chiaramonte-Tracy did not recall ever observing plaintiff dive into the shallow racing pool before the accident, and she never attempted to teach plaintiff how to dive off a starting block. She did not recall that she or McKay forbade the students to dive off the starting blocks unless a coach was present, nor did she give or hear McKay give instructions about the danger of improper diving into shallow water.
On January 14, 2000, the trial court granted summary judgment in favor of defendants. It found that, under the doctrine of primary assumption of risk, defendants could not be liable unless they had elevated the risks inherent in competitive swimming or had behaved recklessly. Viewing the evidence in the light most favorable to plaintiff, the trial court determined that defendants were entitled to judgment as a matter of law and entered judgment in their favor. Plaintiff’s motion for new trial was denied, and she appealed.
In reaching its decision, the court considered whether defendants should be liable for plaintiff’s injury because they “pushed plaintiff beyond her capabilities or because they increased her risk in some other way.” The majority determined that, assuming coach McKay required plaintiff to compete at a level beyond her existing skill level, coaches who merely challenge their students to move beyond their current level of performance have not breached a duty of care.
With respect to plaintiff’s claim that McKay increased the risks inherent in competitive swimming by breaking his promise that she would not be required to dive at meets, the majority reasoned: “As we explained ante, coaches who merely challenge their students to improve their skills should not be subject to tort liability. We see no reason in policy or law to apply a harsher rule to coaches who issue such challenges after previously assuring their students that they would not be encouraged or required to learn new skills. More to the point, plaintiff was not forced to accept her coach’s challengе; she could have refused to swim. By voluntarily rising to the challenge of attempting an unfamiliar dive, plaintiff assumed the risk that she would be unable to meet that challenge. [Citations.] It also bears noting that neither the coach’s challenge nor his broken promise caused plaintiff’s injury, nor did either act increase the inherent risk of the harm plaintiff faced.” The Court of Appeal majority also determined that even if the coach did not explain the hazards of diving to plaintiff, she was well aware of those hazards—as her emphatic expressions of fear had established.
Finally, the Court of Appeal majority concluded, it would be speculative to conclude that more training or supervision would have prevented the injury. The majority recognized that factual disputes remained with respect to plaintiff’s claim that defendants increased the risks inherent in competitive swimming because defendants (1) failed to provide her with adequate diving instruction, (2) did not require her to practice sufficiently, and (3) did not supervise her adequately. “In our view,” the majority countered, “plaintiff’s argument that more training, practice, or supervision would have prevented the injury is speculative.” It reached this conclusion despite the declaration of plaintiff’s expert that the coach’s failure to instruct plaintiff increased the inherent risk of the sport. In fact, the majority declared that it was disregarding the declaration of the expert, apparently on the theory that “ ‘[i]t will always be possible for a plaintiff who suffers a sports injury to obtain expert
One Court of Appeal justice dissented, observing that school districts have a duty of due care in supervising their students. The dissent noted that the applicability of the defense of primary assumption of risk should be determined by the court as a matter of law only in the absence of material factual disputes. In the present case, the dissenting justice insisted, there was a material factual dispute as to whether defendants’ conduct increased the risk of harm over that inherent in competitive swimming. The factual dispute related to whether plaintiff was instructed on how to execute a racing dive into shallow water. “[O]ne increases the risk of harm over that inherent in a sport when an authority figure, such as a coach, pushes a young person to engage in a dangerous maneuver without first providing basic instruction.” The dissenting justice refused to accept that “simply because plaintiff desires to engage in a high school sport, those who otherwise would owe her a duty of care are absolved of that duty under the circumstances here presented. An inexperienced high school freshman takes up a sport, not only to compete, but also to learn. And whereas a part of learning comes from being challenged, an instructor has a duty to avoid unreasonable risk of injury to his or her pupil, [f] Plaintiff’s evidence was that she was panicked by the prospect of having to dive into a shallow pool, had told her coach about her fears, and was promised that it would not be required. To then, in the midst of a competitive meet, demand that she execute that very dive, raises a triable issue as to whether she was inappropriately taken beyond her level of experience and capability, placing her in a situation that presented an unreasonable risk of injury.” Further, the dissenting justice maintained, recognizing a duty to provide sufficient training would not chill vigorous competition, but rather might well have just the opposite effect.
We granted plaintiff’s petition for review.
II
A defendant’s motion for summary judgment should be granted if no triable issue exists as to any material fact and the defendant is entitled to a
A
Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. In a game of touch football, for example, there is an inherent risk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm arising from a collision would work a basic alteration—or cause abandonment—of the sport. We addressed this problem in Knight, supra,
In Knight, supra,
As for the first class of cases, however, we held that the plaintiff’s claim should be barred entirely because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim. (Knight, supra, 3 Cal.4th at pp. 310, 314-315.) We
Looking first at the nature of the sport, we observed that “[i]n the sports setting . . . conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.” (Knight, supra,
But the question of duty depends not only on the nature of the sport, but also on the “role of the defendant whose conduct is at issue in a given case.” (Knight, supra,
When in Knight, supra,
In Knight, supra,
We had occasion to comment in passing on an instructor’s duty in Parsons v. Crown Disposal Co. (1997)
The general proposition that a sports instructor or coach owes a duty of due care not to increase the risk of harm inherent in learning an active sport is consistent with a growing line of Court of Appeal opinions that have applied the Knight, supra,
Subsequent decisions have clarified that the risks associated with learning a sport may themselves be inherent risks of the sport, and that an instructor or coach generally does not increase the risk of harm inherent in learning the sport simply by urging the student to strive to excel or to reach a new level of competence. This line of cases analyzes and articulates an important and appropriate limitation on the duty of a sports instructor. The cases point out that instruction in a sport frequently entails challenging or “pushing” a student to attempt new or more difficult feats, and that “liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities.” (Bushnell v. Japanese-American Religious & Cultural Center, supra,
The first in this line of decisions is Bushnell v. Japanese-American Religious & Cultural Center, supra,
In reaching its conclusion, the court in Bushnell, supra,
A number of Court of Appeal decisions agree with the Bushnell conclusion that pushing an athlete to compete, excel, or move to the next level of competence ordinarily does not form a basis for liability on the part of athletic instructors and coaches. (See Rodrigo v. Koryo Martial Arts, supra, 100 Cal.App.4th at pp. 954-956 [tae kwon do drill necessarily involved risk of injury from being kicked; instructor did not increase the risks inherent in learning the sport]; Kane v. National Ski Patrol System, Inc., supra, 88 Cal.App.4th at pp. 211-212 [instructor of aspiring ski patrol members may have misassessed their skill level and the hazards of the terrain, but did not recklessly increase the risk inherent in improving skills to the level required for ski patrol members]; Lilley v. Elk Grove Unified School Dist., supra,
For example, the court in West v. Sundown Little League of Stockton, Inc., supra,
In another example, a court barred a claim that a ski instructor had pushed a student to perform beyond his skill level. (Allan v. Snow Summit, Inc., supra,
A final example demonstrates why it would be inconsistent with Knight, supra,
The trial court as trier of fact agreed with plaintiff’s allegation that the teacher had acted recklessly, but the Court of Appeal reversed, applying the rationale set out in Bushnell, supra,
The Court of Appeal stated that “an instructor’s assessment errors—either in making the necessarily subjective judgment of skill level or the equally subjective judgment about the difficulty of conditions—are in no way ‘outside the range of the ordinary activity involved in the sport.’ (Knight v. Jewett, supra,
These cases appropriately reason that, even keeping in mind the role of the coach or sports instructor, the imposition of a duty to avoid challenging a student to perform beyond his or her currеnt capacity would have a chilling effect on the enterprise of teaching and learning skills that are necessary to the sport. These decisions properly emphasize that a coach or athletic
We agree that the object to be served by the doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity. This concern applies to the process of learning to become competent or competitive in such a sport. Novices and children need instruction if they are to participate and compete, and we agree with the many Court of Appeal decisions that have refused to define a duty of care in terms that would inhibit adequate instruction and learning or eventually alter the nature of the sport. Accordingly, we believe that the standard set forth in Knight, supra,
The Court of Appeal majority in the present case concluded that in light of plaintiff’s allegations and supporting evidence, coach McKay merely challenged her to go beyond her current level of competence. We believe that this takes an unduly narrow view of plaintiff’s claim and her evidence, which went far beyond a claim that the coach made an ordinary error of judgment in determining that she was ready to perform the shallow-water dive.
As noted above, the Red Cross teaching manual submitted by plaintiff acknowledged that the principal danger faced by persons learning to compete in swimming is the shallow-water dive.
Defendant McKay did not challenge the sequence of instruction prescribed by the Red Cross manual, but said in his declaration and deposition testimony that he generally followed it. His declaration and deposition testimony with regard to the amount and nature of the instruction he offered to plaintiff were in sharp contrast to plaintiff’s claims. He stated that at team practice sessions, he began her diving training in the deep pool, and only moved her to the shallow pool when he felt she was ready. He believed he had observed plaintiff make about five acceptable dives from the deck into the shallow pool and that he also had seen her dive off the starting block into the shallow pool. His declaration and testimony did not concede that he had promised plaintiff she never would be required to dive, and he denied informing plaintiff that she would be off the team if she refused to dive on the day she was injured.
As the dissenting justice in the Court of Appeal pointed out, plaintiff was inexperienced. “Plaintiff’s evidence was that she was panicked by the prospect of having to dive into a shallow pool, had told her coach about her fears, and was promised that it would not be required. To then, in the midst of a competitive meet, demand that she execute that very dive,” in conjunction with an absence of training, presented a triable issue requiring resolution by a jury. We agree that the following factors indicated a triable issue with respect to whether the coach’s behavior was reckless: the lack of training in the shallow-water dive disclosed by plaintiff’s evidence, especially in the face of the sequenced training recommended in the Red Cross manual submitted by plaintiff; the coach’s awareness of plaintiff’s deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive.
Clearly, a disputed issue of fact exists as to whether the coach provided any instruction at all on shallow-water diving, and the nature of the coach’s promises and threats to plaintiff also are in dispute. If a jury were to find that
B
The Court of Appeal majority also determined that рlaintiff had not established a causal relationship between coach McKay’s alleged conduct and plaintiff’s injury. The court acknowledged that factual disputes remained as to whether the coach adequately trained and supervised her, but labeled as speculative the claim that instruction and supervision would have prevented the injury. In support, it cited Aaris v. Las Virgenes Unified School Dist., supra,
In Aaris, supra,
The Court of Appeal, in rejecting the student’s claim with respect to the coach’s duty of care, also commented that the plaintiff merely assumed that
The Court of Appeal in the present case also relied upon Lupash, supra,
The Court of Appeal refused to recognize a duty of care that would prevent lifeguards from being trained to do anything but “walk (rather than run) down a beach before entering the water and to then carefully shuffle across the ocean floor to ascertain the bottom conditions before trying to swim. Being so ultracautious about their own personal safety, lifeguаrds so instructed would invariably jeopardize the safety and lives of others.” (Lupash, supra,
Relying upon these decisions, the Court of Appeal majority in the present case viewed as speculative plaintiff’s claim that her coach’s alleged acts and
As indicated by the evidence proffered in the present case, by contrast, the causal connection between the coach’s conduct and the injury cannot be rejected as speculative at this stage. The combination of factors noted above in connection with the discussion of duty also tended to demonstrate that the coach’s acts and omissions were causally related to plaintiff’s injury. The Red Cross manual made part of the record below indicates that most injuries sustained by competitive swimmers result from diving into shallow water, and stresses that a specific sequence of training is necessary for the safe execution of shallow-water dives. Also relevant to causation was plaintiff’s evidence that she was a complete novice but was offered no training in the shallow-water dive, in contrast to the ordinary progression of training that is recommended to meet the serious risk of injury posed by the shallow water dive when it is performed by unskilled persons. The coach’s promise that she would not be required to dive evidently lulled her into a false sense of security and deprived her of motivation to gain diving skills. The coach’s demand that she take a position in the relay that required that she dive, or else withdraw from competition, was causally related to her decision to practice the dive on her own, despite her lack of training. The evidence was uncontroverted that there were no starting blocks adjacent to the District’s deep pool. Thus, it appears plaintiff had no practice in executing the shallow-water dive from a starting block into deep water, despite evidence that such practice was important in order to cause a reduction in the incidence of injury. In addition, coach McKay’s declaration and deposition testimony indicate that he was in charge of the swim meet, was present when plaintiff was injured—possibly standing quite nearby—but was not watching her. Plaintiff’s deposition and that of coach Chiaramonte-Tracy supplied evidence that team members, including plaintiff, had not been directed to refrain from practicing diving unless under the direct supervision of a coach. Under these circumstances, a factual issue was presented as to whether coach McKay’s acts and omissions were causally related to plaintiff’s injury.
We observe several flaws in this line of reasoning. The first is that with respect to the issue of the asserted breach of duty, in referring to plaintiff’s voluntary participation in the sport of competitive swimming and her choice to compete at the meet and practice diving on the day she was injured, the Court of Appeal majority failed to recognize that the doctrine of primary assumption of risk, including the issue of the scope of defendants’ duty of care, does not turn on plaintiff’s subjective awareness of the risk or her decision to encounter it voluntarily, but on the question whether defendants owed her a duty of care. (Knight, supra, 3 Cal.4th at pp. 313-315.)
Second, with respect to the issue of causation and the Court of Appeal majority’s emphasis that plaintiff was injured after she took it upon herself to practice on her own, we observe that there was a conflict in the evidence on the question whether plaintiff had been instructed not to practice dives on her own. Under the allegations and evidence provided by plaintiff, it was reasonably foreseeable that when the coach told plaintiff she would have to dive (for the first time) at the meet, she would see a need for practice. Under these circumstances and those referred to above, sufficient facts were produced that would support a determination that the absence of prior instruction was the proximate cause of plaintiff’s injury.
The question whether plaintiff’s voluntary decision to practice the shallow-water dive without supervision constituted a supervening cause of her injury depends on whether her conduct “ ‘was within the scope of the reasons imposing the duty upon the actor to refrain from negligent conduct. If the duty is designed, in part at least, to protect the other from the hazard of being harmed by the intervening force . . . then that hazard is within the duty, and
The third flaw in the reasoning of the Court of Appeal majority relates to its apparent conclusion that it should disregard the testimony of рlaintiff’s expert. We see no justification for disregarding the opinion of a person with 40 years’ experience as a swim coach that it is important to provide a specific sequence of training in the shallow-water dive, because of the risk of injury arising when no such training is provided. Courts ordinarily do not consider an expert’s testimony to the extent it constitutes a conclusion of law (see Benavidez v. San Jose Police Dept. (1999)
III
Keeping in mind that ultimately it will be plaintiff’s obligation to establish the elements of her cause of action before the trier of fact by a preponderance of the evidence, we believe that triable issues of material fact exist regarding the question whether coach McKay breached a duty of care owed to plaintiff, thereby causing her injury, by engaging in conduct that was reckless in that it was totally outside the range of ordinary activity involved in teaching or coaching the sport of competitive swimming.
For the foregoing reasons, the judgment of the Court of Appeal is reversed and the matter is remanded for further proceedings consistent with this opinion.
Baxter, J., Chin, J., Brown, J., and Moreno, J., concurred.
Notes
Plaintiff also alleged that the District negligently failed to provide adequate supervision, training, or control of its coaches. The latter claim against the District has not been pursued in this court.
Plaintiff s complaint also alleged a cause of action for premises liability against the District. She alleged that the rubber on the starting block from which she dove was worn, that the District had actual or constructive notice of the worn condition of the starting block, and that its failure to take corrective measures resulted in the injury she sustained. The trial court granted the District’s motion for summary judgment with respect to this cause of action, and the Court of Appeal affirmed. Plaintiff did not seek review of this determination, so it is not before us.
The analysis set out above continues to be applied in this court. (See Cheong v. Antablin, supra,
Other sources confirm that the shallow-water dive, a traditional maneuver in racing, is the major source of injury in the sport of competitive swimming. (See Mueller & Cantu, National Center for Catastrophic Sports Injury Research, Twelfth Annual Report (Fall 1982-Spring 1994), published as appen. to McCaskey & Biedzynski, A Guide to the Legal Liability of Coaches for a Sports Participant's Injuries (1996) 6 Seton Hall J. Sport L. 7, 108-109.)
Defendants object that plaintiff did not allege specifically that the coach had acted recklessly. They claim that this omission bars consideration of that basis for tort liability under the standard enunciated in Knight, supra,
Indeed, plaintiff’s conduct was largely foreseeable. She presented evidence that McKay was a school district employee who had primary authority over the school’s swim teams, that he was in charge of the swim meet, that plaintiff had conveyed to him both how upset she was about being required to dive at the meet and that she felt unprepared, that he previously had asked more experienced girls to provide instruction for the novices, and that she could see him while she performed the practice dives.
Concurrence Opinion
Instructors and coaches of active sports must, as an essential part of their jobs, encourage and direct students to learn new and more difficult maneuvers and to perform already learned skills in more stringent competitive circumstances, a learning process that carries inherent risks of physical injury. In learning active sports and in athletic competition the risk of injury is ever present; instructors must frequently exercise their individual, subjective judgment in deciding'whether a student is ready to attempt a more dangerous skill or to face tougher competition; and when an injury occurs, especially an injury to a young person, the jury may be tempted to “second-guess [the] instructor’s assessment” (Kane v. National Ski Patrol System, Inc. (2001)
I therefore agree with the majority that an instructor should bе liable for a student’s injury in the course of learning a sport only if the instructor’s conduct is found to have been “ ‘totally outside the range of the ordinary activity’ [Knight v. Jewett (1992)
We started our duty analysis in Knight from the indubitably true proposition that “defendants generally have no legal duty to eliminate . . . risks inherent in the sport” but “do have a duty to use due care not to increase the risks . . . over and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at pp. 315-316.) We then reasoned that in active sports “a participant’s normal energetic conduct often includes accidentally careless behavior” (id. at p. 318), which is for that reason “treated as an ‘inherent risk’ of a sport” (id. at p. 316), and that to allow liability to be imposed for such coparticipant negligence would alter the nature of the sport and thus chill “vigorous participation in such sporting events” (id. at p. 318). Knight’s conclusion as to the particular duty applicable was limited to coparticipants; we noted expressly that the duty of care may vary with “the role of the defendant whose conduct is at issue.” (Ibid.)
Using analogous reasoning here, I believe we must recognize a somewhat greater duty on the part of instructors, especially teachers and coaches of minor students, than the duty participants in a sport owe one another. A school football coach, while far from being the insurer of students’ safety, is also very differently situated in knowledge, training, experience, and responsibilities from the casual football player whose duty we considered in Knight. It might be said that a participant’s extreme departure from the degree of care shown by an ordinarily prudent person is an inherent risk of certain vigorous competitive sports, for in the heat of a game or the excitement of a race a contestant may lose sight of virtually everything except his or her goal. But a coach or instructor stands somewhat apart from the fray; the coach’s role includes observing and directing the competition, and he or she is expected to keep a cooler head than the competitors themselves. When the instructor or coach is a schoolteacher, moreover, the safety of the minor students will
Finally, I believe a standard akin to gross negligence will provide sufficient protection against unfair second-guessing of the instructor’s judgment and, therefore, will not unduly chill participation in sports instruction. The Legislature has, in a wide variety of contexts, considered a rule of qualified immunity, under which liability may be imposed only for gross negligence, sufficient to protect participants in, and sponsors of, socially useful enterprises against unfair liability. Such qualified immunity applies, for example, to liability of a public entity or employee for hazardous recreational activity on public property;
Like the majority, I conclude the record here presents a triable issue of fact as to whether the individual defendant’s conduct “was totally outside the range of ordinary activity involved in teaching or coaching the sport of competitive swimming.” (Maj. opn., ante, at p. 1018.) Plaintiff’s evidence, if believed, tends to show she received virtually no instruction on the shallow-water racing dive, a maneuver carrying a relatively high risk of serious injury, despite the existence of an authoritative protocol, regarded as essential to student safety, for teaching this skill. Directing a student to perform such a skill in competition under these circumstances would be an extreme departure from the norms of swim instruction, and thus completely outside the ordinary range of teaching the sport.
For the above reasons, I concur in the judgment.
Public schoolteachers, in particular, owe students a duty of care arising in part from their statutory duty of supervision. (Ed. Code, § 44807; Dailey v. Los Angeles Unified School Dist. (1970)
Government Code section 831.7, subdivision (c)(5).
E.g., Education Code section 76407, subdivision (b) (physician offering voluntary medical assistance to participant at community college athletic event); Civil Code sections 1714.2, subdivision (b) (person rendering cardiopulmonary resuscitation at scene of emergency), 1714.21, subdivision (f) (volunteer rendering emergency care with automated external defibrillator); Health and Safety Code section 1799.106 (emergency medical technician, firefighter or law enforcement officer rendering emergency medical services at sсene of emergency); Business and Professions Code sections 2727.5 (registered nurse rendering care, outside course of employment, at scene of emergency), 3706 (same as to respiratory therapist), 4826.1 (veterinarian rendering emergency treatment to animal at scene of accident).
E.g., Corporations Code section 5239, subdivision (a)(3) (volunteer director or officer of nonprofit public benefit corporation); Welfare and Institutions Code section 9543, subdivision (e) (donor of food to “Brown Bag” program for low-income seniors).
E.g., Health and Safety Code sections 1596.643, subdivision (b) (employees of state agency operating child care services hotline), 25400, subdivision (b) (public entity or employee abating hazardous substance spill or discharge), 120455 (person administering vaccine to minor).
Concurrence Opinion
More than a decade ago in Knight v. Jewett (1992)
I disagree. I would hold high school coaches to the general standard of ordinary care. Concluding that the coach’s conduct here may have passed beyond negligence into the zone of recklessness, the majority reverses the Court of Appeal’s judgment. I join in the reversal of the Court of Appeal’s judgment, but for different reasons. I would require the injured plaintiff to establish only negligence, not recklessness.
Pertinent here are two decisions of this court involving personal injury actions brought by sports participants against coparticipants, Knight, supra,
I disagreed with the plurality’s view that assumption of risk is an aspect of duty. (Knight, supra, 3 Cal.4th at pp. 324—338 (dis. opn. of Kennard, J.); Ford, supra, 3 Cal.4th at pp. 351-364 (conc. opn. of Kennard, J.).) I explained that by “recasting] the analysis of implied assumption of risk from a subjective evaluation of what a particular plaintiff knew and appreciated about the encountered risk into a determination of the presence or absence of duty legally imposed on the defendant,” the plurality “transform[ed] an affirmative defense into an element of the plaintiff’s negligence action,” thereby “abolishing] the [assumption of risk] defense without acknowledging that it [was] doing so.” (Knight, supra, at p. 324 (dis. opn. of Kennard, J.).)
But even assuming that the only duty of care that participants in active sports owe each other is to avoid intentional injury or recklessness, that standard should not govern the conduct of a professional coach entrusted to teach novice athletes.
The majority holds that a severely injured 14-year-old student athlete cannot recover for the negligence of her junior varsity swim team coach who allegedly failed to train her to perform a dangerous shallow-water dive before requiring her to execute the dive in a competitive swim meet.
Negligence consists of “creating] or fail[ing] to avoid unreasonable risks of foreseeable harm to others.” (1 Dobbs, Torts (2001) § 166, p. 275.) That rule is reflected in Civil Code section 1714, which makes every person responsible for “an injury occasioned to another by his or her want of ordinary care . ...” In general, the standard of ordinary care is satisfied when the conduct conforms to that of “a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc. (1993)
The majority, however, considers that standard of care too onerous in this case. It holds that the coach is not liable if his conduct merely created an unreasonable risk of foreseeable harm. According to the majority, plaintiff student must prove that the coach acted intentionally to cause her injury, or that he acted recklessly through conduct “ ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching” the sport of junior varsity competitive swimming. (Maj. opn, ante, at p. 996.) In doing so, the majority adopts the same standard for a professional coach of novice teenage athletes that the Knight and Ford plurality found appropriate for participants in active sports. Not taken into account by the majority is the significant difference between the two groups. Persons participating in active sports have to expect that a coparticipant may play too roughly and thus cause injury. By contrast, coaches of student athletes teach them the skills necessary to perform their sport of choice safely and effectively. Because student athletes, particularly minors, often consider their coach a mentor or role model, they trust the coach not to carelessly and needlessly expose them to injury. The majority’s decision puts an end to that trust: Coaches are under no legal obligation to use reasonable care in training their students how best to perform a sport without incurring personal injury.
The concurring opinion agrees with the majority that a coach incurs liability to a student athlete only for conduct “ ‘ “totally outside the range” ’ ” of ordinary coaching activity. (Conc. opn. of Werdegar, J., ante, at p. 1018.) But it objects to the majority’s labeling such conduct “ ‘reckless’ ” (ibid.), preferring to call it “gross negligence.” (Id. at p. 1020.) Whatever one
The majority asserts that requiring coaches to act reasonably when instructing young students would “improperly chill[]” their efforts “to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks.” (Maj. opn., ante, at p. 996.) Not so. Because participation in active sports always entails some risk of harm, the traditional negligence standard imposes liability on an athletic coach only for conduct that exposes players to an “unreasonable risk” of such harm. (1 Dobbs, Torts, supra, § 166, p. 275.) This standard of negligence requires no more of coaches than that they conform their conduct to that of “a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc., supra,
High school shop instructors who teach students how to operate a power saw or repair a car, and chemistry teachers in their laboratories, are held to a standard of ordinary negligence. Why should a different standard apply to an instructor who teaches students competitive swimming? According to the majority, a different standard is called for because a coach must “challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks.” (Maj. opn., ante, at p. 996.) Yet any teacher, no matter what the subject matter, challenges students to perform with ever greater skill and to undertake progressively harder tasks. There is no logical basis for treating coaches differently.
III
The majority concludes that summary judgment was improperly granted for defendant coach because triable issues of fact exist as to whether he acted recklessly such that his conduct was totally outside the range of the ordinary activity of a coach of junior varsity competitive swimming. In my view, plaintiff’s allegations that defendant did not adequately prepare her to execute a dive in shallow water before directing her to perform the dive at a swim competition states a cause of action for negligence, not recklessness. But I agree with the majority in reversing the Court of Appeal, which upheld the trial court’s grant of summary judgment.
These are my reasons for reversing the Court of Appeal: The trial court granted summary judgment on the ground that defendant coach had no duty