A panel of judges in a California appeals court has affirmed a jury verdict in favor of Erik Even Daarstad (a coach) and the Murrieta Valley Unified School District that their collective negligence was “not a substantial factor in causing harm” to a football player, who was playing without a helmet in a football physical education (P.E.) class in the off-season.
At the time of the collision, plaintiff William Casey Aspinall was participating in a multi-day, seven-on-seven, touch-football drill tournament at the school. The participants wore cleats and gloves, but not helmets or pads. The participants were supervised by Daarstad, a social studies teacher and the junior varsity football coach.
Football P.E. was an extension of the high school’s football program. The district’s policy required football players to participate in football P.E. class during the off-season, which began within a week of the collision. If a player dropped out of football P.E. class, the player would receive an F grade for athletics.
At the outset of the tournament, Daarstad instructed the participants not to engage in any physical play, to keep it two-hand touch, and to only go at half or quarter speed. “Nonetheless, he knew the participants would be aggressive, competitive, and going full speed,” wrote the court. “He also knew there would be an opportunity for the participants to collide and get hurt.”
Over the course of the tournament, the games became “brutal” and “very physical.” As the sole supervisor for 60 to 65 participants, Daarstad was unable to control the situation, according to the court. The games got “out of hand” because the participants were trying to impress Daarstad in order to make the varsity team for the playoffs. In describing the situation, the court noted that there was heavy contact. Participants were tackling, fighting, trash-talking, and “getting hurt left and right.” Nonetheless, Aspinall did not see any tackling during the drill in which the collision occurred and he acknowledged the collision was accidental, not intentional.
After the collision, Aspinall fell to the ground. He was unconscious and bleeding from a one and a half-inch cut in the outer area of his left eye. According to him, when he woke up, he saw a group of his classmates around him. Everything was spinning and he could not hear anything. Daarstad rushed through the group and said something to him, but Aspinall could not comprehend what Daarstad was saying. Daarstad left and ran toward the school, according to the court. The plaintiff was eventually taken to the nurse’s office.
According to Aspinall’s classmates, Daarstad was not nearby when the collision occurred. They had to get Daarstad and tell him Aspinall was hurt. Daarstad ran over, hovered over Aspinall for some period of time, and then left. A security team member came by, Aspinall regained consciousness, and his classmates helped him up. Aspinall staggered around and walked off holding his head.
According to Daarstad, he saw Aspinall fall down, but did not see Aspinall unconscious. Aspinall was sitting up and awake when Daarstad reached him. Daarstad asked Aspinall some questions. Daarstad was not sure if Aspinall had a concussion, but he believed Aspinall was coherent and well enough to go to the nurse. Daarstad had a student flag down a security team member passing by in a security cart. Daarstad said he helped Aspinall into the cart and the security team member took Aspinall to the nurse’s office. Daarstad did not prepare a report of the incident.
Aspinall was out of school for months after the collision. He continues to suffer from migraines and postconcussion narcolepsy. He also has memory and concentration problems.
Prior to the incident, Aspinall had suffered concussions and concussion-related symptoms, according to the court. However, he was cleared to participate in supervised athletic activities both the year in which the collision occurred and the prior year. According to Aspinall’s deposition testimony, he had completely recovered from the prior concussions before the collision. Daarstad had not reviewed Aspinall’s physical exam information and did not know about the prior concussions before allowing Aspinall to participate in the tournament.
Aspinall sued the district defendants for negligence and negligent supervision. The district defendants answered the complaint and asserted primary assumption of the risk as an affirmative defense.
Expert testimony figured prominently in the case.
The district defendants sought to exclude the opinions from Aspinall’s P.E. and sports safety expert (safety expert) that (1) Daarstad improperly failed to prevent the collision, (2) the participant who collided with Aspinall was not properly taught because he left his area of responsibility to intercept the ball, (3) Daarstad failed to provide instruction on attempting to intercept a football without protective gear, (4) Daarstad failed to properly supervise the participants knowing they would be playing all out and at top speed, and (5) the participants should not have been running so fast or playing so hard. The district defendants sought exclusion of the evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked foundation.
They also sought to exclude opinions from Aspinall’s safety expert that (1) the district failed to conduct the football P.E. class in accordance with a professionally designed P.E. curriculum, (2) the district failed to ensure the football P.E. class was not simply a football practice for the junior varsity football team, (3) the district improperly allowed the football P.E. class to be used as part of the junior varsity football team practice, (4) the district failed to monitor the football P.E. class to ensure it provided proactive and dynamic instruction, and (5) the district failed to properly supervise Daarstad by allowing a P.E. class to involve football only. The district defendants sought to exclude this evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked relevance.
In addition, the district defendants sought to exclude opinions from Aspinall’s safety expert and his P.E. and coaching expert (coaching expert) that the district defendants failed to provide appropriate protective gear for the football P.E. class participants. The district defendants sought to exclude this evidence for lacking foundation, lacking relevance, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked foundation and impliedly on the ground the challenged opinions lacked relevance.
The defendants went on to successfully challenge many other facets of the expert testimony presented by the plaintiffs.
Heading to trial, the parties agreed to bifurcate the liability and damages phases. Aspinall proceeded to trial on the liability phase without expert witness testimony. He relied on three theories of liability. The first theory was that the district defendants acted recklessly and unreasonably increased the risk of harm by organizing the tournament immediately after the end of the football season, by not providing the participants with helmets or shoulder pads, by providing the participants with cleats, and by providing the participants with an incentive to show off for the coaches. The second theory was that the district defendants acted negligently by allowing Aspinall to participate in the tournament despite a pre-existing history of concussions. The third theory was that the district defendants had negligently caused Aspinall emotional distress by failing to provide him with proper treatment after the collision.
Following the initial close of evidence, the district defendants moved for nonsuit. The court tentatively granted the motion on all three theories. As to the first theory, the court found Aspinall had not established the causation element. As to the second theory, the court found Aspinall had not provided any evidence his doctors had not cleared him to play football. As to the third theory, the court found Aspinall had not established causation because there was no evidence Aspinall suffered greater harm due to a delay in treatment.
The jury found the district defendants acted recklessly, but their conduct was not a substantial factor in causing harm to Aspinall. As to any injury suffered by Aspinall after the collision, the jury rendered two verdicts. In one verdict, the jury found the district defendants were negligent, but their negligence was not a substantial factor in causing serious emotional distress to Aspinall. In the other verdict, the jury found Daarstad was not negligent.
On appeal, Aspinall argued the court prejudicially erred by misapplying the primary assumption of the risk doctrine (see Knight v. Jewett (1992) 3 Cal.4th 296, 308, 11 Cal. Rptr. 2d 2, 834 P.2d 696) and excluding key expert evidence that would have established the District defendants’ actions caused his harm. He also contends the court erred by failing to instruct the jury on his unfitness to participate theory of negligence. Finally, he contends the court erred by failing to submit his negligent supervision theory of negligence to the jury.
“We conclude Aspinall forfeited his challenge to the exclusion of the expert evidence and, even if he had not forfeited the challenge, the court properly applied the primary assumption of the risk doctrine and did not abuse its discretion in excluding the evidence,” wrote the panel. “We further conclude there was not substantial evidence to warrant either instructing the jury on his unfitness to participate theory of negligence or submitting his negligent supervision theory of negligence to the jury. Given these conclusions, we need not decide whether the court’s actions resulted in a miscarriage of justice.”
William Casey Aspinall, a Minor, etc. v. Murrieta Valley Unified School District et al.; Ct.App.Calif., 4tth App. Dist., Div. One; D072847, 2018 Cal. App. Unpub. LEXIS 1488; 3/6/18
Attorneys of Record: (for plaintiff) Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer, Shea S. Murphy, Joseph S. Persoff; Greene, Broillet & Wheeler, Browne Greene; Balaban & Spielberger, Daniel K. Balaban and Andrew J. Spielberger. (for defendants) Declues Burkett & Thompson, Jeffrey A. Smith and Steven J. Lowery
