Hemady v. Long Beach Unified School Dist.

• Decision Date: 28 September 2006
• Docket Number: No. B184274.,B184274.
• Citation: 49 Cal.Rptr.3d 464,143 Cal.App.4th 566
• Parties: Jane HEMADY, a Minor, etc., et al., Plaintiffs and Appellants, v. LONG BEACH UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

49 Cal.Rptr.3d 464

143 Cal.App.4th 566

Jane HEMADY, a Minor, etc., et al., Plaintiffs and Appellants, v. LONG BEACH UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

No. B184274.

Court of Appeal, Second District, Division 3.

September 28, 2006.

Edna V. Wenning; Bond Curtis and Alexander W. Kirkpatrick, Pasadena, for Plaintiffs and Appellants.

Thomas Law Firm and Allen L. Thomas, Long Beach, for Defendants and Respondents.

KITCHING, J.

INTRODUCTION¹

Plaintiff and appellant Jane Hemady (plaintiff), a 12-year-old student, was struck in the face with a golf club by another student during a seventh grade physical education golf class. Plaintiff seeks damages for personal injuries from defendants and respondents the Long Beach Unified School District (the District) and the instructor of the middle school golf class, Brian Feely (Feely), (collectively defendants).

This appeal requires us to determine the applicable standard of care which governs defendants' potential liability for injuries occurring in a middle school golf class. Under the general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their failure to use due care injures another person. (Civ.Code, § 1714;² Cheong v Antablin (1997)16 Cal.4th 1063, 1068, 68 Cal.Rptr.2d 859, 946 P.2d 817.) We refer to this as the "prudent person standard of care."

However, in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight) and Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, 4 Cal.Rptr.3d 103, 75 P.3d 30 (Kahn), the Supreme Court established an exception to the prudent person standard of care in certain sports settings. (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69, 8 Cal.Rptr.3d 823.) This is because dangerous conditions or conduct are often an integral part of the sport itself. (Knight, at p. 315, 11 Cal. Rptr.2d 2, 834 P.2d 696.) To prevent a fundamental alteration of certain sports and to guard against chilling a coach's role or discouraging vigorous participation in sports activities, in some cases, under the primary assumption of risk doctrine, a coach or co-participant's potential liability is not governed by the prudent person duty of care. Rather, the coach or co-participant will only owe the plaintiff a limited duty of care not to intentionally injure a player or engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696; Kahn, at p. 996, 4 Cal. Rptr.3d 103, 75 P.3d 30.) We will refer to this as the "Knight/Kahn" limited duty of care.

In this case, as we will discuss, we find the defendants' potential liability must be determined pursuant to the prudent person duty of care rather than the Knight/Kahn limited duty of care. That is because the policies which support the Knight/Kahn limited duty of care do not apply to a seventh grade golf class. Applying a prudent person standard of care to determine defendants' potential liability will not result in a fundamental alteration of the game of golf or the loss of an integral part of the sport. Likewise, applying a prudent person standard of care in this case will not chill a coach's role in challenging students to improve their golf game, and will not discourage vigorous participation by student athletes.

Moreover, historically, the California Supreme Court has applied the prudent person standard of care to determine liability of school districts and their employees for injuries to students which occurred during school hours. (See Bellman v. San Francisco H.S. Dist. (1938) 11 Cal.2d 576, 81 P.2d 894 (Bellman) [injuries occurred during tumbling physical education class]; Pirkle v. Oakdale Union Etc. School Dist. (1953) 40 Cal.2d 207, 253 P.2d 1 (Pirkle) [injuries occurred during supervised touch football game at noon recess]; and Dailey v. Los Angeles Unified School District (1970) 2 Cal.3d 741, 87 Cal.Rptr. 376, 470 P.2d 360 (Dailey) [injuries occurred during unsupervised slap boxing after lunch].)³ The Supreme Court in Knight and Kahn gave no indication that it intended to overrule or disapprove these authorities, which remain viable today.

Because the trial court concluded that the Knight/Kahn limited duty of care applied, we reverse the summary judgment in favor of defendants and remand the action to the trial court for proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

1. Plaintiff Sustains Personal Injury

At the time of the incident, plaintiff was a 12-year-old seventh grade student at Stanford Middle School in Long Beach, California (the school). Physical education was a mandatory class at the school as part of the regular curriculum.⁴ One of the options to satisfy the physical education requirement was the golf class.

In her declaration in opposition to the motion for summary judgment, plaintiff stated that although she had never played golf, she enrolled in the class because the game interested her.

Defendant Feely began teaching physical education classes in 1999. During the summer of 2000, Feely attended an hour-and-a-half seminar for teaching golf. This was the only training Feely received for teaching a golf class. In September 2000, Feely began teaching physical education golf at the school.

The golf class commenced on September 25, 2000. On October 9, 2000, during the sixth day of golf class, Feely was teaching the students the mechanics of the full golf swing. Before Feely permitted the students to take full swings, he identified safety precautions with regard to the golf club. Feely told the students that golf clubs were made of wood or metal and could hurt them if they were hit by one. Feely also instructed the students to stand behind the student hitting the ball. In Feely's opinion, being hit by a golf club was not an inherent risk in golf if the students followed the rules.

On the day in question, Feely separated the 54 students in the class into 11 groups. He explained the whistle commands and signal system for when to hit the practice wiffle balls and when to rotate positions. The students at the front cones were to hit four balls. The other students were to stand and wait in a designated and marked area 10 feet behind the students hitting the wiffle balls.

Feely provided evidence that his practice was to blow a whistle to indicate when to hit the balls, when to retrieve the balls, and when the next student in line was to take a turn hitting. Plaintiff, however, provided a declaration that Feely did not follow this practice. According to plaintiff, the class was unorganized and uncontrolled, and Feely's instructions were confusing. According to plaintiff, at times students were left to their own devices to decide when it was time to hit and when it was time to change positions.

At some point, the student in front of plaintiff appeared to be finished. According to plaintiff, the student was looking around and not doing anything. Plaintiff then stepped forward to place a ball on the grass. Without warning, the student in front of plaintiff swung her club back and hit plaintiff in the mouth. In her declaration, plaintiff stated that Feely had not given the whistle command for the person in front of plaintiff (who hit her) to hit the ball. In addition, plaintiff declared that Feely did not give the whistle command to indicate when to change positions. At the time of the incident, Feely was at one end of the field talking to other students.

2. Plaintiff Files Suit

On October 31, 2001, plaintiff, a minor, by and through her guardian ad litem, filed suit against the Long Beach Unified School District, Stanford Middle School and instructor Feely. The trial court overruled defendants' demurrer to the first cause of action for negligence, but sustained the demurrer without leave to amend as to all remaining causes of action.

3. Trial Court Grants Defendants' Motion for Summary Judgment

In their motion for summary judgment, defendants asserted that pursuant to Kahn, supra, 31 Cal.4th 990, 4 Cal.Rptr.3d 103, 75 P.3d 30, plaintiff was required to show that Feely's conduct breached the Knight/Kahn limited duty of care. Defendants asserted that as a matter of law, plaintiff could not make this showing.

In plaintiff's opposition, she asserted that the prudent person standard of care governed defendants' potential liability, not the Knight/Kahn limited duty of care. Alternatively, plaintiff asserted that there were material facts in dispute as to whether Feely's conduct breached the Knight/Kahn limited duty of care.

The trial court granted defendants' motion for summary judgment. The trial court ruled that the Knight/Kahn limited duty of care governed defendants' potential liability. The trial court also found that plaintiff failed to raise a triable issue of material fact that defendants' breached the Knight/Kahn limited duty of care. The trial court denied plaintiff's motion for new trial. Plaintiff timely filed a notice of appeal.

ISSUE PRESENTED

This appeal presents the issue of whether the Knight/Kahn limited duty of care or the prudent person standard of care governs the potential liability of defendants.⁵

STANDARD OF REVIEW

This court reviews de novo a trial court's order granting a motion for summary judgment. (Kahn, supra, 31 Cal.4th at p. 1003, 4 Cal.Rptr.3d 103, 75 P.3d 30.) A defendant moving for summary judgment must show that either one or more elements of the plaintiff's cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

DISCUSSION

1. Duty of Care Is a Question of Law for the Court

In the area of sports activities, the court decides the existence and scope of a defendant's duty of care as a question of law. The applicable...