Key Case Involving Primary Assumption of Risk Remanded to Trial Court

Mar 27, 2004

Taking direction from the state’s highest court, A California appellate court has asked a trial court to reconsider its earlier ruling and determine if a swim coach acted recklessly when he required 14-year-old Olivia Kahn to practice diving at the shallow end of the pool.
Kahn was seriously injured in the 1994 accident. She sued her coach, Andrew McKay, for negligence as well as the school district, East Side Union High School Dist., for premises liability.
Initially, the trial court granted summary judgment on both causes of action. On the negligence claim, it barred the plaintiff’s claim because of the primary assumption of risk doctrine. On the premises liability claim, it found for the defendant because there was no material factual dispute.
On appeal, a majority of judges from the 6th Appellate District affirmed the trial court’s decision on both claims. The plaintiff appealed the ruling involving her negligence claim to the California Supreme Court.
There, the high court disagreed with the appeals court’s finding that “coach McKay merely challenged (the plaintiff) to go beyond her current level of competence.” The high court opined that that holding “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.”
Further, it held that “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.” (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1012.)”
The high court concluded that there was a disputed question of material fact on the critical issue of whether McKay acted recklessly.
Upon remand, the appellate offered little more opinion, other than closing the book on the plaintiff’s claim of premises liability and asking the trial court to conduct further proceedings to resolve the negligence claim. Olivia Kahn v. East Side Union High School et al., H021239
Ct. App.Cal., 6th App. Dist., 1/9/04


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