Gill v. Tamalpais Union High School District, A112705 (Cal. App. 5/14/2008)
| Decision Date | 14 May 2008 |
| Docket Number | A112705,A112830,A113358 |
| Court | California Court of Appeals Court of Appeals |
| Parties | JENNIFER E. GILL, A Minor, etc., Plaintiff and Respondent, v. TAMALPAIS UNION HIGH SCHOOL DISTRICT, Defendant, Cross-complainant and Appellant; PRESIDIO SPORT & MEDICINE, Cross-defendant and Respondent. JENNIFER E. GILL, a Minor, etc., Plaintiff and Appellant, v. TAMALPAIS UNION HIGH SCHOOL DISTRICT, Defendant, Cross-complainant and Respondent; PRESIDIO SPORT & MEDICINE, Cross-defendant and Respondent. TAMALPAIS UNION HIGH SCHOOL DISTRICT, Cross-complainant and Respondent, v. PRESIDIO SPORT & MEDICINE, Cross-defendant and Appellant. |
Appeal from the Marin County, Super. Ct. No. CV021064.
Plaintiff Jennifer Gill suffered a cut on her face when she collided with the metal pole supporting an outdoor basketball backboard. The pole was on premises of defendant Tamalpais Union High School District (Tamalpais or District). While still on Tamalpais property awaiting first aid treatment from Presidio Sport & Medicine (Presidio), Gill fell off a raised counter and suffered additional injuries. A jury found for Gill, apportioning 60 percent of the responsibility for her damages to Tamalpais and 40 percent to Presidio. The jury awarded Gill approximately $477,000 for economic and non-economic losses. After applying Proposition 51, the court entered judgment for Gill against Tamalpais in the amount of $336,932. On Tamalpais's cross-complaint against Presidio for indemnification, the judge entered judgment in favor of Tamalpais for $50,572.80. All parties have appealed, and the appeals have been consolidated.
On Tamalpais's appeal, we conclude that the issues of whether Gill was injured by the dangerous condition of public property and whether Gill was barred by the doctrine of primary assumption of risk were appropriately decided against Tamalpais. We further conclude that two instances of questionable closing arguments by Gill's trial counsel do not qualify as misconduct sufficiently potent to require reversal. We also conclude that the trial court did not err in deciding as a matter of law an issue Tamalpais claims should have been left to the jury, namely whether Gill was injured during an activity that was sponsored or supervised by the District; moreover, the court's action does not qualify as prejudicial. We reject a number of contentions that the trial court committed instructional error. Finally, we conclude that substantial evidence supports the jury's allocation of fault between Presidio and Tamalpais.
On Gill's appeal, we reject her contention that the trial court misapplied Proposition 51 when it declined to make Tamalpais liable for all of the non-economic damages awarded by the jury. We also conclude that the court did not err in declining to award her interest on a judgment that was prematurely and erroneously entered.
On Presidio's appeal, we find without merit its contention that it was entitled to judgment as a matter of law because there was no competent evidence from which the jury could conclude that Presidio committed professional negligence.
In light of these conclusions, we affirm the judgment and the order denying Presidio's motion for judgment notwithstanding the verdict.
The salient circumstances are largely without dispute. Viewed most favorably to Gill as the prevailing party (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787 (Cassim ), the evidence shows the following:
On November 1, 2001, Gill was 15 years-old and a sophomore at Redwood High School, which is part of the District in Marin County. Gill wanted to be on the Redwood High girls' junior varsity basketball team. She believed it would make a favorable impression on the team's coach, and thus improve her chances of making the team, if she attended the "open gyms" held at Redwood High.1
For more than five weeks, the open gyms had been conducted inside the school's gymnasium. However, at the open gym held on the afternoon of November 1, after regular school hours, Gill was participating in basketball drills that were conducted on the outdoor courts at Redwood High. Each of the basketball backboards is attached to the end of two hollow metal poles. The poles are anchored in the ground, on the painted baseline (boundary) of the court. The poles can be covered with pads, and officials at Tamalpais had directed that the outdoor courts were not to be used unless the poles were be covered with pads, which Tamalpais had. On November 1, the pads were not in use.2
Robin Goddard was the Redwood High girls' basketball coach and the person in charge of the open gym. After stretching and running drills, Goddard directed about two dozen girls present to begin lay-up drills, which led to the incident here.
As described by Gill, the drill required each girl to run the length of the court while dribbling the ball until she was near the basket, and then launch "a hook shot off one foot." Next, "[y]ou run back through under the basket and collect your ball, and then just run to the other side and repeat it." About the third or fourth time Gill approached the basket, "I was running . . . towards the basket . . . and the sun caught in my eyes, and I was looking back to see if I had made the shot, and I hit the pole." The collision gave her a "cut right underneath my right eyebrow," and it was "bleeding pretty profusely." Stunned and disoriented, Gill was escorted off the court, and over to Coach Goddard, who told Gill to go to "the training room" in the gymnasium "to get patched up."3
When Gill arrived at the training room, she saw it was full, i.e., all of the training tables were occupied, and the trainer, Kendra Jordan, was attending to someone else. Gill told Jordan what had happened: Gill got up on the counter, from where she watched Jordan walk into another room. At that point, Gill testified Gill fainted, and fell to the floor on her face.4 One of her teeth was knocked out, and two others were "hanging by a thread." All of the teeth were front teeth on Gill's upper jaw. The school nurse was summoned, examined Gill, and made the decision that the injuries were sufficiently serious to warrant taking Gill to a nearby hospital.5 Gill needed assistance to stand and walk, and was vomiting and spitting blood as Goddard took her to a hospital.
Gill spent the night at the hospital. The cut on her face required three stitches, and left a scar. The tooth that was knocked out is permanently lost; two others were badly damaged and needed root canals to be saved. A bridge was made for the missing tooth, but Gill suffered an allergic reaction to it, and her gums became inflamed as a result. Still, Gill had to live with it for about a year and a half. Gill will need a new bridge every three to five years, unless she gets implants for all three teeth.
Gill missed attending school for about ten days because she was suffering migraines and toothaches, and because she had constant trips to the dentist. For about six weeks, Gill could not eat any food that required the use of her missing and damaged front teeth. For seven months she could eat only soft foods that did not require use of those teeth. When Gill returned to school, she was still suffering from migraines, and taking pain medication.6 Her grades suffered, and she was dropped from the basketball team in a publicly humiliating way. She also developed an acute fear of dentists, a fear that required counseling.7
Contra Costa Firefighter and Paramedic Dan Colbath testified as an expert on first aid, particularly with respect to head injuries. He gave his opinion that the conduct of both Goddard and Jordan, each of whom is Red Cross-certified on first aid and CPR, fell below the first aid standard of care. According to Colbath, Goddard should first have sat Gill down and checked to she if had suffered a concussion. Goddard should have stayed with Gill to the training room, and not delegated—"shirking it," was Colbath's characterization—the task to other players. Also, Goddard should have gone with Gill so that she could "have told [Jordan] the sport trainer exactly what happened, `She was running at full speed, hit her head on the pole.' " Colbath further testified that Jordan also failed to take necessary and ordinary first aid steps. Jordan should have spoken with Gill to get an idea of the injury and its seriousness. And she should not have walked away from Gill, because a person with a head injury should never be left alone. Moreover, Jordan should have put Gill on one of the training tables (even if it meant displacing someone with a potentially less serious injury), and not on the counter. The potential for Gill falling was a distinct possibility because head injuries commonly produce dizziness and a drop in blood pressure. Both Goddard and Jordan should have called 911 at once, most certainly after Gill's fall from the counter: As Colbath vividly described it, it was "criminal," "ludicrous," and "insane that they didn't call 911 after the second injury." There was no justification for not having experienced paramedics transport Gill to the hospital.
Gill presented testimony from a safety expert that the double-pole support system used at Redwood High was a commercial antique, and is no longer available. The design has been eclipsed by a single-pole support, which has the obvious benefit of halving the potential for collisions. Another modification that has become standard is to have the supporting pole situated at least three feet behind the baseline, not on the baseline...
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