Bushnell v. Japanese-American Religious & Cultural Center, JAPANESE-AMERICAN

• Decision Date: 11 March 1996
• Docket Number: No. A067320,JAPANESE-AMERICAN,A067320
• Citation: 43 Cal.App.4th 525,50 Cal.Rptr.2d 671
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 1723, 96 Daily Journal D.A.R. 2910 Gary B. BUSHNELL, Plaintiff and Appellant, v.RELIGIOUS AND CULTURAL CENTER, CONCORD JUDO CLUB, et al., Defendant and Respondent.

Page 671

50 Cal.Rptr.2d 671

43 Cal.App.4th 525, 96 Cal. Daily Op. Serv. 1723,

96 Daily Journal D.A.R. 2910

Gary B. BUSHNELL, Plaintiff and Appellant, v. JAPANESE-AMERICAN RELIGIOUS AND CULTURAL CENTER, CONCORD JUDO CLUB, et al., Defendant and Respondent.

No. A067320.

Court of Appeal, First District, Division 1, California.

March 11, 1996.

Milton Jacobs, James P. Molinelli, Jr., Jacobs, Spotswood, Casper & Murphy, San Francisco, for Appellant.

Timothy J. Minor, Gilles, Nicora, Minor & Sullivan, Monterey, for Respondent.

STEIN, Associate Justice.

Gary Bushnell suffered a broken leg while attempting to perform an exercise during a judo class at the Japanese American Religious and Cultural Center's Judo Club. (Hereafter the defendants will be referred to collectively as the "Club.") Bushnell's partner in the exercise was Daniel Tamori, an instructor at the club, and the evening's activities were supervised by George Tamori, the Club's director and head of instruction at the Club. The trial court granted summary judgment to the Club on the theory that the defense of primary assumption of risk as defined in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, provided a complete defense to the action. Bushnell contends that the defense does not apply here, because unlike the plaintiff in Knight, he was not injured by an amateur coparticipant in an unsupervised sport, but by an instructor in a sport organized by the Club and supervised by another instructor employed by the Club. It is true that the relationship between the plaintiff and the defendant is a factor to be considered in determining if the defense of primary assumption of risk applies and instructors may be held liable when their actions have increased the inherent risks in an activity. (Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89 and Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270.) On the undisputed facts of the present case, however, we find no evidence that any employee or agent of the Club increased the risks inherent in the activity of learning judo. We therefore affirm the judgment.

Standard of Review

To be entitled to summary judgment, a defendant must establish "as a matter of law" that none of plaintiff's asserted causes of action can prevail. (Code Civ.Proc., § 437c, subd. (c); Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) "A defendant may do so as to a particular cause of action by establishing, as a matter of undisputed fact, either (1) that one of the necessary elements of that cause of action does not exist, or (2) that it has a complete defense to that cause of action. (LaRosa v. Superior Court (1981) 122 Cal.App.3d 741, 744, 176 Cal.Rptr. 224.) [p] Since the existence of the primary assumption of the risk is dependent upon the existence of a legal duty, and since duty is an issue of law to be decided by the court, the applicability of that defense is amenable to resolution by summary judgment. [Citation]" (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395, 36 Cal.Rptr.2d 418.) On review the evidence and the parties' arguments are considered de novo (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1513, 285 Cal.Rptr. 385), and the reviewing court shall "strictly construe the moving party's papers and liberally construe those of the opposing party to determine if they raise a triable issue of material fact." (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1205, 14 Cal.Rptr.2d 670.) We relate the relevant facts in light of this standard.

Facts

The Club provides instruction in judo. George Tamori is the director and head of instruction at the Club. Daniel Tamori is a volunteer instructor. Bushnell, 35 years old at the time of his injury, had been attending judo classes on a weekly basis for about one year. Bushnell was practicing a "tai otoshi" throw, a relatively simple maneuver learned early in judo training. Daniel Tamori was acting as Bushnell's practice partner, meaning that Tamori would allow himself to be thrown, or to some extent would "jump" through the throw. As the class progressed Bushnell and Tamori worked more and more quickly, attempting to work up to performing the exercise at full speed. Bushnell successfully completed the maneuver approximately two dozen times throughout the evening. On his last attempt, however, he fell or was driven backwards over his left leg, causing the leg to break. Neither Bushnell nor anyone else could state exactly how the injury occurred. Bushnell speculates that the injury was at least in part the result of the speed at which Daniel Tamori approached him.

Discussion

As a general rule, persons have a duty of care to avoid injury to others, and may be held liable if their careless conduct injures another person. (Civ.Code, § 1714; Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.) The doctrine of primary assumption of the risk as defined by the court in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, acts as a limitation to this general rule, recognizing that in certain situations the nature of the activity at issue is such that the defendant does not owe a legal duty to the plaintiff to act with due care. In Knight, the plaintiff was injured during a touch football game when the defendant knocked her down and stepped on her hand. The court held that "in the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior.... [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions ..., imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Knight, supra, at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics in original.) The court concluded "that it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport--for example, for an injury resulting from a carelessly thrown ball or bat during a baseball game--and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of ordinary activity involved in the sport." (Id. at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rationale behind excusing participants from liability in sports cases is grounded in the notion that legal liability would inhibit the natural play of the game, interfere with the natural fervor of the participants and alter the game's essential nature. (Id. at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The full scope of the defense of primary assumption of risk has yet to be established. Nonetheless, the cases that have considered the doctrine have established some principles that we can apply here. The doctrine applied in Knight in part because the defendant was a coparticipant in a competitive sport. The application of the doctrine, however, does not turn on whether the defendant was a coparticipant or whether the activity at issue was competitive rather than co-operative. Rather, in all cases the nature of the activity, the relationship of the defendant to the activity and the relationship of the defendant to the plaintiff must be examined. It must then be determined, in light of the activity and these relationships, whether the defendant's conduct at issue is an "inherent risk" of the activity such that liability does not attach as a matter of law. General rules of liability attach when the defendant's conduct is not an inherent risk of the activity or when the defendant's conduct increased the inherent risks in the activity. A defendant also may be charged with the duty to take such precautions as will prevent the risk without having a chilling effect on the nature of the activity. The court in Knight explained, for example, that a ski resort could not be held liable for failing to eliminate moguls on a ski run because the challenge and risks posed by the moguls are part of the sport of skiing. Nonetheless, because defendants generally have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport, a ski resort "clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm." (3 Cal.4th at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) For similar reasons a baseball player does not have a duty to avoid throwing a bat carelessly, but the owner of the stadium may have a duty to take such precautions as reasonably will protect spectators from injuries resulting from carelessly thrown bats. (3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696, discussing the decision in Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733, 81 P.2d 625.) If the baseball player were required to pay attention to the bat his attention to the game would suffer, adversely affecting the nature of the activity. Requiring an owner to erect a screen, however, could not adversely affect the nature of the activity so long as play can be seen through the screen. In both the ski resort and baseball examples, the question is whether a precaution taken to protect the plaintiff from injury--including acting with due care--would interfere with the activity in question. If so, the failure to take the precaution cannot result in liability, because the risk is an inherent part of the activity.

The doctrine of primary assumption of risk can apply even if the defendant was in some manner in control of the situation and thus in a better position than the plaintiff to prevent the plaintiff's injury. In Ford v. Gouin (1992) 3 Cal.4th 339, 11...