In a unanimous verdict, a panel of three California state appeals court judges affirmed a lower court’s ruling that a high school track athlete assumed the risk of injury when she fell during a race and suffered a knee injury.
In December 2018, the Long Beach Unified School District (District) sponsored an all-comers track meet at Long Beach Poly High School (LBPHS). The incident involving Plaintiff Alexandra Grande, a junior at Valencia High School, occurred during a 600-meter race during the meet.
The court noted that an all-comers track meet is typically held during the preseason for runners to practice. Runners of all ages and types can participate. Races are not limited by age or gender. For example, master level athletes (i.e. experienced runners) may run in any race they choose. Individual races are generally organized by ability and availability. If there is room in a race, a master level athlete typically may participate. In all-comers track meets, participants do not pre-register and the composition of races is based on who attends that day.
During a 600-meter race, West Ranch High School Track Coach Rick Tyson ran as a pacesetter. All the other competitors were high school females. The race started with a waterfall start, which meant the starting line curved upward starting in lane 1 and ending in lane 8. Part of the strategy to running a race with a waterfall start involved the runners merging into the inner lanes to gain an inside position. At the starting lineup, Grande positioned herself in lane 4. Tyson lined up between lanes 2 and 3 to Grande’s left and behind her. There were two runners in between them. After the start of the race, Grande began to move from lane 4 toward the inside lanes. Video taken by Grande’s father showed Grande fell when she was directly in front of Tyson near the beginning of the race.
In her deposition, Grande claimed that Tyson caused her fall. Specifically, she testified that his right arm pushed into the back of her left shoulder, and then his right leg went into the back of her left knee, which made her fall and tear her anterior cruciate ligament (ACL).
She also testified that “you assume the risk of — I guess you’d say impeding on another runner. But yeah, everyone knows that we could get elbowed; we could get tripped up in the beginning. Everyone knows that.”
Meanwhile, Tyson, who held the same certification as a track coach for a Division 1 school, had significant experience as competitor and coach. Tyson testified that he and other coaches “agreed a pacesetter was needed in the 600-meter race because the runners were ‘taking off too fast’ and ‘exhausting themselves the first third of the race.’” Tyson testified he was the only coach willing and able to run as a pacesetter.
Crystal Irving, the head track coach and athletic director at the host school, approved Tyson’s request to serve as pacesetter. Tyson recalled he shouted an announcement that he would be a pacesetter for the 600-meter race and that the race official made the same announcement at the beginning of the race. Grande, her father, and her coach denied hearing any such announcement by Tyson or anyone else. But they all saw Tyson line up, although they did not know why he was running. Tyson asked the race official where he should line up, and the official indicated Tyson had chosen a “good spot.” Tyson testified that he placed himself to provide visual and audio cues for the runners to understand whether to speed up, slow down, or stay where they were. Pacing is meant to help athletes establish a rhythm.
The aforementioned Irving was also experienced, having organized several such all-comers meets over the last seven years. She noted that “pre-season” meets deviated regular season meets in several ways, including the fact that pacesetters were “absolutely” allowed in such meets.
Grande ultimately sued the School District and Tyson for negligence for allowing “a rather large adult male” (Tyson) to run alongside teenaged girls, which unjustifiably increased the risk of harm ordinarily associated with a 600-meter race. Grande’s theory of liability was that Tyson’s participation in the race increased the risk of harm beyond what was inherent in a race that allowed for runners to merge lanes. She also alleged Tyson “breached his duty of care to Grande by engaging in unnecessary and reckless behavior that increased the risk of harm.”
The defendants moved for summary judgment, arguing the assumption of risk doctrine barred Grande’s claims. Each argued Grande’s injury was caused by an inherent risk of running in a race that involved a waterfall start and allowed all comers, who could be of different ages, genders, sizes, and skill levels. In essence, both defendants argued they did not owe Grande a cognizable duty, which is an essential element of her negligence claim.
Further, they contended that the “nature of the meet” meant that Tyson was not an anomaly, that other larger athletes could have competed, putting Grande and other competitors at risk.
The trial court agreed, granting summary judgment in favor of the District and Tyson. It held Tyson’s presence in the race did not increase the risks inherent in the sport simply because he was a coach or larger than the other runners. The court further observed the nature of an all-comers track meet meant a woman of Tyson’s size and Grande’s age could have participated in the race. As a result, Tyson’s presence did not increase any inherent risk.
Grande appealed, arguing that “the trial court incorrectly applied primary assumption of the risk principles.”
In its analysis, the court noted that “to establish a cause of action for negligence, the plaintiff must show that the ‘defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury.’” Brown v. USA Taekwondo 2021, 11 Cal 5th 204, 213, 276 Cal. Rptr. 3d 434, 483 P.3d 159.
Of additional relevance, the court in Knight v. Jewett (1992) 3 Ca. 4th 296 308-309, 11 Cal. Rptr 2nd 2, 834 P.2d 696, recognized two types of assumption of risk: primary and secondary. In primary assumption of risk cases, “a defendant owes no duty to protect the plaintiff from a particular risk of harm” and “the lack of a duty of care operates as a complete bar to recovery, without regard to whether the plaintiff’s conduct was reasonable or unreasonable, and without regard to the plaintiff’s subjective awareness or understanding of the potential risk.” (Staten v. Superior Court (1996) 45 Cal. App.4th 1628, 1632, 53 Cal. Rptr. 2d 657 (Staten).) By contrast, in secondary assumption of risk cases, “the defendant does owe a duty of care, but the plaintiff knowingly encounters the risk,” and in that situation “liability is apportioned by comparative fault.” (Id.) In other words, “primary assumption of risk applies to the question of duty and secondary assumption of risk applies to the calculation of damages.” (Shin v. Ahn (2007) 42 482, 499, 64 Cal. Rptr. 3d 803, 165 P.3d 581 (Shin).)
The appeals court then rendered its findings.
First, the court found that there is an inherent risk competing in an all-comers meet. Furthermore, a waterfall start heightens that inherent risk even more. Turning to Grande’s argument that Tyson “increased the inherent risk due to his: size and weight; position in line; aggressive movement toward the front of the pack; and carelessness,” the court was unmoved. “Grande does not argue that Tyson’s position, assertiveness, or lack of awareness constituted intentional or reckless conduct,” it noted, which would have triggered a closer look from the court.
As for the plaintiff’s negligence argument against the District, the court found that Grande presented no material evidence that the District “increased the ordinary inherent risks of the race.”
Alexandra Grande v. Long Beach Unified School District et al.; Ct. App. Calif., 2d App. Div; B316228; 10/7/24
