A California state appeals court has affirmed the ruling of a trial court, effectively dismissing the claim of a swimmer, who “collided head-to-head” with another swimmer, and then sued a Paseo Aquatics Sports (his swim club) and his coach.
In so ruling, the court relied on the doctrine of primary assumption of the risk for its decision.
The plaintiff in the case was Zechariah Wolf, a 17-year-old member of Paseo. Wolf collided head-on with teammate Ethan Lee while warming up for a swim meet. At the meet, each swim club was assigned a specific lane in which to warm up. Wolf’s coach, Grant Richman, instructed 15 to 20 swimmers to “circle swim” counterclockwise in their assigned lane. Wolf swam behind Lee. Lee made a flip turn, pushed off the wall, and “collided head-to-head” with Wolf.
Wolf alleged Paseo was vicariously liable for Coach Richman’s negligent conduct because he “made the event unsafe by placing 15-20 minor swimmers, including Wolf, in one lane.” Wolf sought damages and medical expenses incurred as a result of the “catastrophic injuries” he suffered, including “head trauma, traumatic brain injury, and neck injury.”
The trial court granted Paseo’s motion for summary judgment, finding Wolf assumed the inherent risk of colliding with another swimmer when he participated in the warm-up swim.
On appeal, Wolf argued that the trial court erred in granting summary judgment because triable issues of material fact exist as to whether Coach Richman increased the risks of competitive swimming beyond those inherent in the sport.
In considering the plaintiff’s argument, the appeals court reviewed the aforementioned doctrine:
“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.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003, 4 Cal. Rptr. 3d 103, 75 P.3d 30 (Kahn).) “The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.]” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154, 150 Cal. Rptr. 3d 551, 290 P.3d 1158 (Nalwa).)
The court noted specifically that the doctrine provides, “defendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport.” (Kahn, supra, 31 Cal.4th at p. 1004, italics added.) The appeals court further added that other courts have applied the rule to sports instructors or coaches, “keeping in mind, of course, that different facts are of significance in each setting.” (Kahn, at p. 1011.) The rule extends to “noncontact competitive sports” as well. (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1633, 53 Cal. Rptr. 2d 657.)
More generally, “[a] sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 996, italics added.) If the conduct “cannot be prohibited without deterring vigorous participation in the sport or otherwise fundamentally altering the nature of the sport,” the court is less likely to find a breach. (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1396, 36 Cal. Rptr. 2d 418.)
Determining whether the doctrine applies, according to the panel, requires analysis of both the “the nature of the sport or activity in question” and “the parties’ general relationship to the activity.” (Knight v. Jewett (1992) 3 Cal.4th 296, 313, 11 Cal. Rptr. 2d 2, 834 P.2d 696 (Knight), citing 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 748, pp. 83-86.) When the facts are undisputed, application of the doctrine is a question of law for the court to decide. (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69, 8 Cal. Rptr. 3d 823.)
Coach Richman Did Not Increase the Risks Inherent in Competitive Swimming
The appeals court noted that Wolf’s complaint alleged that Paseo “knew that it was unsafe to allow 15-20 minor swimmers to swim in one lane all at one time because of the potential for concussion.” In fact, he charged that the defendants “continued with this dangerous practice despite this knowledge, sacrificing swimmer safety for ill-perceived [sic] expediency and practicality” and that each of the defendant “had the power and authority to stop this unsafe practice.”
With respect to Paseo, Wolf alleges Coach Richman “was in charge of . . . supervising Plaintiff at the event [and he] could have banned the Plaintiff from warming up with 15 to 20 minor swimmers in the same lane at the same time.” He alleges the danger created by this practice “was not an inherent risk of a swim meet, vastly and unreasonably increasing the risks to Plaintiff over and above those inherent in a swim meet.”
The appeals court acknowledged Paseo presented evidence that “coaches tell swimmers to enter the water with a three-point entry, without diving, one to two body lengths apart.” Further, “the number of swimmers in each lane is determined by the number of lanes assigned to a team by the host team; Paseo had no control over the number of lanes it is assigned for warm-ups at swim meets; that limiting warm-ups to one or a very small number of swimmers per lane ‘would fundamentally alter the sport’ by making it ‘likely . . . impossible for a group of swimmers to warm up simultaneously’; and doing so ‘would have the potential of significantly delaying the start of the swim meet.’”
Wolf contended the motion must fail because Paseo did not “demonstrate all the elements of primary assumption of risk,” pointing to evidentiary deficiencies.
The appeals court disagreed.
“While Paseo’s moving papers were skeletal, it need not have produced its own evidence to prevail on summary judgment. The doctrine of judicial admission allows a moving party to use allegations from the non-moving party’s pleadings to eliminate triable issues of material fact. (Mark Tanner Constr., Inc. v. HUB Internat. Services, Inc. (2014) 224 Cal.App.4th 574, 586-587, 169 Cal. Rptr. 3d 39.) Similarly, the moving party may seek judgment as a matter of law by challenging the sufficiency of the non-moving party’s pleadings. (See Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal. Rptr. 219 [‘A motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings’]; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1055, 282 Cal. Rptr. 726 [‘When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true’].)”
The court also wrote that the doctrine, “while sometimes denominated as an affirmative defense, is a matter of duty. A plaintiff bears the burden to establish both the existence and breach of a duty by the defendant. (See Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162-168, 41 Cal. Rptr. 3d 299, 131 P.3d 383 [plaintiff must allege facts ‘supporting breach of the duty not to enhance the inherent risks of his sport’]; Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250, 91 Cal. Rptr. 3d 532, 203 P.3d 1127 [‘In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation, and damages’].)”
The appeals court zeroed in on a weakness in the plaintiff’s complaint, since it alleged that allowing 15 to 20 swimmers to warm up in the same lane was a “common practice by all Defendants at invitational meets” and that “every other lane” in the pool contained the same number of swimmers on the day of the collision.
“His own description of this activity,” wrote the appeals court, “contradicts his assertion that Paseo ‘vastly and unreasonably’ increased the risk of a collision. The parties do not dispute that swimmers engage in simultaneous circle swimming prior to meets and that this type of swimming is an integral part of competitive swimming. Nor do they dispute it is common for 15 to 20 swimmers to warm up in one lane. It follows that collisions are an inherent risk in competitive swimming. (See, e.g., Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 53 Cal. Rptr. 2d 657 [collisions are inherent in the sport of solo figure skating because practice involves group skating].) Wolf’s statement of undisputed material facts supports this conclusion.
The court opined, “Paseo owed a limited duty not to increase the risk to Wolf by acting recklessly or ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching the sport.’ (Kahn, supra, 31 Cal.4th at p. 996.) Wolf has not presented any evidence showing this occurred. His pleading admits as much. His opposition tried to plug these gaps with several unpleaded facts: that Coach Richman directed the swimmers to leave at three second intervals; that two younger swimmers were hanging onto the pool wall as Lee approached, causing him to perform his flip turn directly into the oncoming Wolf; and that Coach Richman was standing on the opposite side of the pool when they collided. Even if Wolf included these facts in his second amended complaint, they do not establish that Coach Richman acted differently than any other coach or increased the risks inherent in competitive swimming. The parties do not dispute how Coach Richman acted, nor can the evidence be construed by a trier of fact as reckless or outside the range of ordinary activity involved in teaching or coaching the sport. (See Kahn, supra, 31 Cal.4th at pp. 1012-1013.)”
Therefore, the appeals court concluded, “judges and juries should not second-guess the judgment of coaches and other sports instructors by imposing liability for injuries suffered during participation in competitive sports, even when caused by negligent conduct. (See Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214, 105 Cal. Rptr. 2d 600 [‘the ability to second-guess an instructor’s assessment is essentially limitless, so too would an instructor’s liability be limitless’].) The evidence shows collisions are inherent risks of group swimming. Wolf offers no evidence to the contrary. As such ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ (§ 437c, subd. (c).)”
Wolf v. Paseo Aquatics Sports; Ct. App. Calif., 2nd App. Dist.; No. B324969; 12/21/23
