Brown v. El Dorado Union High Sch. Dist.

• Citation: 76 Cal.App.5th 1003,292 Cal.Rptr.3d 72
• Decision Date: 29 March 2022
• Docket Number: C088204
• Parties: Nicholas BROWN, a Minor, etc., Plaintiff and Appellant, v. EL DORADO UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.
• Court: California Court of Appeals

76 Cal.App.5th 1003

292 Cal.Rptr.3d 72

Nicholas BROWN, a Minor, etc., Plaintiff and Appellant,

v.EL DORADO UNION HIGH SCHOOL DISTRICT, Defendant and Respondent.

C088204

Court of Appeal, Third District, California.

Filed March 29, 2022

Dreyer Babich Buccola Wood Campora, Roger A. Dreyer, Robert B. Bale, Sacramento; and C. Athena Roussos, Sacramento, for Appellant Nicholas Brown by and through his Guardian ad Litem Laurie Brown for Plaintiff and Appellant.

Horvitz & Levy, Steven S. Fleischman, Burbank, Scott P. Dixler ; Schuering Zimmerman & Doyle, Robert H. Zimmerman, Keith D. Chidlaw, Sacramento; Matheny, Sears, Linkert & Jaime, and Matthew C. Jaime, Sacramento, for Defendant and Respondent.

HULL, J.

SUMMARY OF THE APPEAL

Plaintiff Nicholas Brown (Nick), through his mother and Guardian ad Litem Laurie Brown (Laurie), brought a personal injury action against defendant El Dorado Union High School District (the District) after Nick suffered a traumatic brain injury

during a football game.

After the District brought a summary judgment motion, the trial court granted summary judgment in favor of the District on two grounds. First, the trial court found the case was barred by the affirmative defense of an express assumption of risk due to a release and waiver Nick and his father, Read Brown (Read), signed prior to the football season. Second, the court found the action was barred by the principle of the primary assumption of risk.

Nick now appeals, challenging the trial court's decision to accept a less-than-perfect separate statement of undisputed material facts (separate statement) filed by the District, evidentiary rulings, and the substance of the trial court's ruling on the motion for summary judgment. We find the trial court acted within its discretion in accepting the separate statement, Nick has failed to sufficiently develop his arguments regarding the court's evidentiary rulings, and summary judgment was proper due to the Browns’ express assumption of the risks associated with Nick's participation in the football program. Accordingly, we affirm.

FACTS AND HISTORY OF THE PROCEEDINGS

Nick Brown

In August 2015, Nick was a sophomore at Union Mine High School and played on the junior varsity football team. Union Mine is a high school within the District.

Release and Related Documents

According to Jay Aliff, the Athletic Director for Union Mine High School, prior to the 2015-2016 academic year, every student who wished to participate in extracurricular athletics was to receive an athletic handbook from their coach or Aliff's office. According to a cover letter included in the handbook, "[t]he following information in this Extracurricular Athletic Handbook must be read, reviewed, and agreed upon by your student athlete."

Included with that handbook was an "El Dorado Union High School District Release of Liability and Assumption of Risk Agreement [for] Athletics & Cheer/Stunt." Prior to the start of the 2015-2016 football season, Nick and his father signed this form. The release states, "my son ... may participate in the school-related activities designated above." Someone checked the boxes for baseball and football on the release Read and Nick signed.

The release provides that if Nick "is hurt, injured, or even dies, I/we (i.e., the student, his/her parent/s, guardian/s, heir/s ...) will not make a claim against or sue the El Dorado Union High School District (hereinafter EDUHSD), its trustees, officers, employees, and agents, or expect them to be responsible or pay for any damages."

The release included the following:

"I, the undersigned, understand and acknowledge that the above-named student has voluntarily chosen to participate in school-related activities at his/her own risk. I/We know and fully understand that said school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur, and where participants can sustain physical injuries, damage to their property, or even die. Regardless of whether the school-related activity involves physical contact or not, any activity may have inherent risks of injury which are inseparable from the activity. I/We acknowledge and willingly assume all risks and hazards of potential injury, paralysis, and death in the school-related activity/ies ....

"I/We, the undersigned, understand and acknowledge that school-related activity/ies contain potential risks of harm or injury. Injuries might arise from the student's actions or inactions, the actions or inactions of another student or participant, or the actual or alleged failure by district employees, agents, or volunteers to adequately coach, train, instruct, or supervise.... Injuries might also arise from undiagnosed, improperly diagnosed, untreated, improperly treated, or untimely treated actual or potential injuries, whether or not caused by the student's participation. All such risks are deemed to be inherent to the student's participation in school-related activities.

"In consideration for EDUHSD, allowing the above-named students to participate in the school-related activity/ies specified above, I/we voluntarily agree to release, waive, discharge, and hold harmless the EDUHSD and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student's participation in the school-related activity/ies. I/We also expressly agree to release and discharge EDUHSD, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services.

"As parent or legal guardian of the student/participant under 18 years of age, I have read and voluntarily agree that my son/daughter may participate in the school-related activity/ies designated above and I sign this release on his/her behalf. In signing this document I fully recognize and understand that if my son/daughter is hurt, dies, or his/her property is damaged, I am giving up my right and the right of his/her heirs to make a claim or file a lawsuit against the EDUHSD, its trustees, officers, employees, and agent[.]

"By signing below, I/we acknowledge that I/we: (1) have read this document and understand that I/we give up substantial actual or potential rights in order to allow the above-named student to participate in the school-related activity/ies and any associated field trip or excursion; (2) have voluntarily signed as evidence of acceptance of this Agreement without any inducement or assurance of any nature, with full appreciation of the all [sic ] risks inherent in the school-related activity/ies; (3) have no question regarding the scope or intent of this Agreement and I (parent/guardian/non-minor student) have the right and authority to enter into this Agreement and to bind myself, the student, and any other family member, personal representative, assign, heir, trustee, or guardian to the terms of this Agreement. This is a release of all claims. " (Original boldface.)

Read's signature on the release was sufficient to bind Nick to its terms. ( Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 721, 183 Cal.Rptr.3d 234 ["courts have held that the right to disaffirm a minor's contract does not extend to a release of liability signed by a parent on behalf of the minor"].)

Also included with the handbook was a Parent Concussion/Head Injury

Information Sheet that described the protocol for removing a student athlete from and then returning the student to practice and/or competition when the student athlete was suspected of sustaining a head injury. The form indicates concussion injuries "can lead to ... severe brain swelling ... with devastating and even fatal consequences." Read and Nick signed this form, and dated it the same date as the release.

According to Aliff, the packet with the forms and handbook also included a sheet entitled "Parent Concussion/Head Injury

Symptoms & Signs." The form stated concussions could be caused "by a bump, blow, or jolt to the head, or by a blow to another part of the body with the force transmitted to the head."

In his deposition, Nick recalled receiving the handbook at least twice, including once the summer before his sophomore year. Laurie testified she saw a handbook at the beginning of each school year when Nick and his elder brother played sports. She acknowledged her sons would give her the handbook along with forms that needed to be signed, including the one about concussions.

California Interscholastic Federation (CIF) Recommendations

"The California Interscholastic Federation is a voluntary organization that consists of school and school-related personnel with responsibility for administering interscholastic athletic activities in secondary schools." ( Ed. Code, § 33353, subd. (a).)

In their filings below, the parties agreed that the California Interscholastic Federation published a 2015-2016 Constitution and Bylaws (CIF Bylaws) that applied to Union Mine High School, and a 2011 Sports Medicine Handbook (CIF Medicine Handbook). They also agreed that the Sac-Joaquin section of the California Interscholastic Federation published its own 2015-2016 Constitution and Bylaws (SJ CIF Bylaws), which also applied to Union Mine High School.

The Game Management Guidelines contained in the CIF Bylaws "recommended" that school administrative staff "[p]rovide first-aid capability and/or medical doctor availability as needed" at school athletic competitions. The SJ CIF Bylaws provided that, for football games, "[t]he home team shall endeavor to have a doctor at the game." The CIF Medicine Handbook also recommended as part of its section on emergency-preparedness on its bulletin on "Reducing Head and Neck Injuries in Football" that, "[i]f possible, a physician and/or EMT should be present for all games/practices."

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