Iverson v. Muroc Unified School Dist.

• Decision Date: 06 February 1995
• Docket Number: No. F021082,F021082
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Ed. Law Rep. 413 Michael IVERSON, a Minor, etc., Plaintiff and Appellant, v. MUROC UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

Page 35

38 Cal.Rptr.2d 35

32 Cal.App.4th 218, 97 Ed. Law Rep. 413

Michael IVERSON, a Minor, etc., Plaintiff and Appellant, v. MUROC UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.

No. F021082.

Court of Appeal, Fifth District, California.

Feb. 6, 1995.

[32 Cal.App.4th 220] Brian E. Reed, Law Offices of Brian E. Reed, Lancaster, for plaintiff and appellant.

Robinson, Palmer & Stanton, and William D. Palmer, Bakersfield, for defendants and respondents.

OPINION

STONE (Wm. A.), Acting Presiding Justice.

In this case we address the question whether Government Code section 831.7, ¹ which provides qualified immunity to public entities and public employees for injuries sustained by a person during "hazardous recreational activity," immunizes a school district from liability for injuries sustained by a minor student during a soccer match conducted as part of a junior high school physical education class. The superior court concluded immunity attached as a matter of law and granted the school district's motion for summary judgment on the minor's complaint for negligence. Michael Iverson, the minor, by and through his guardian ad litem, appeals from the summary judgment granted in favor of Muroc Unified School District, et al. (the District).

The parties agree that 14-year-old Michael suffered a double fracture of his right forearm while engaged in a soccer match on a school field. The match occurred during an eighth grade physical education class conducted during regular school hours. As described by Michael, at the time of his injury he had just kicked the ball down field and was lying on his left side. He was "slide tackled" by another student who slid into him and kicked his arm. In his action against the District and its physical education instructor, Leroy Matthews, Michael alleged, inter alia, the District negligently instructed and supervised its students engaged in the class.

In its answer the District claimed Michael "voluntarily exposed himself to all of the matters and things alleged" in the complaint and thereby assumed the risk incident to such activities, and that it was immune from liability.

The District moved for summary judgment. It argued section 831.7 was dispositive "because plaintiff was participating in a hazardous recreational activity in which he voluntarily placed himself at risk." ² The District pointed to Michael's deposition testimony in which he acknowledged he played league soccer in the lower grades prior to his injury, and after he recovered from the fractured arm he again played soccer in physical education class. The District argued "it is undisputed that plaintiff voluntarily engaged in the soccer game in which he was injured. Likewise, although physical education courses routinely include hazardous recreational sporting activities, plaintiff's parents allowed him to take such courses." The District maintained soccer was a "hazardous recreational activity" that fell within the description of a "body contact sport" as defined by section 831.7, subdivision (b)(3), and it was statutorily immune from liability as a matter of law.

The court granted the motion, reasoning in part:

"The complaint, read in light of plaintiffs' opposition to this motion, alleges a cause of action for 'negligent supervision.' Thus, the issue this motion raises is not whether there is a triable issue of material fact regarding that theory, but, rather, whether given that theory there is such a factual issue regarding immunity under Government Code section 831.7.

"Government Code section 831.7 provides a public entity immunity against liability for negligence when brought by anyone who 'participates in a hazardous recreational activity ... who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury ... and [who] was voluntarily in the place of risk, or having the ability to do so failed to leave[.]'....

"Soccer, unquestionably, is a hazardous activity within the meaning of section 831.7: .... Here plaintiff, an experienced player, chose to participate in soccer, a hazardous activity, knowing from that experience he could be injured by body contact. The facts, as made out in the record submitted, bring the matter within the immunity that section 831.7 affords."

DISCUSSION

I. What Does "Voluntarily In The Place Of Risk" Modify?

Michael argues subdivision (a) applies only when a plaintiff places himself voluntarily in the place of risk. He maintains at the time of his injury he was engaged in compulsory education in a junior high school physical education class he was compelled to attend.

In a sea change argument, the District now claims "voluntarily in the place of risk" modifies "spectator" only in the language of the statute, not "any person who participates in a hazardous recreational activity[.]" (See emphasized portion of § 831.7, subd. (a), fn. 2, ante.) And even if "voluntarily in the place of risk" does pertain to a participant, the District argues there is no material issue of fact involving whether Michael's participation was voluntary.

We note from the history of this motion, the first part of the District's argument is not the issue the District presented to the trial court in its moving or responsive papers or at the hearing; neither is it the issue to which Michael responded. Clearly, the trial court interpreted " 'and [who] was voluntarily in the place of risk, or having the ability to do so failed to leave' " to apply to a participant. The court stated in its ruling, "Here plaintiff, an experienced player, chose to participate in soccer, a hazardous activity, knowing from that experience he could be injured by body contact...."

As a general rule an appellate court reviews only issues raised in the trial court. (Johanson Transportation Service v. Rich Pik'd Rite, Inc. (1985) 164 Cal.App.3d 583, 588, 210 Cal.Rptr. 433 ["an argument or theory will generally not be considered if raised for the first time on appeal, unless the question is one of law to be applied to undisputed fact. Thus, possible theories not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal.... [Citation.]"].)

On appeal from a summary judgment, however, an appellate court reaches an independent assessment of the correctness of the trial court's ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c); Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513-1515, 285 Cal.Rptr. 385; California Aviation, Inc. v. Leeds (1991) 233 Cal.App.3d 724, 730-731, 284 Cal.Rptr. 687.) We proceed with an analysis of section 831.7 in the context of the stated facts and the District's argument.

"The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.]" (People v. Pieters (1991) 52 Cal.3d 894, 895, 276 Cal.Rptr. 918, 802 P.2d 420; T.M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273, 277, 204 Cal.Rptr. 143, 682 P.2d 338.) In interpreting this legislation, we turn first to the words of section 831.7. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735, 248 Cal.Rptr. 115, 755 P.2d 299; Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764, 150 Cal.Rptr. 785, 587 P.2d 227.)

A test for determining whether a statute is ambiguous is whether it is capable of being understood by reasonably well-informed persons in two or more different senses. (Ervin v. City of Kenosha (1991) 159 Wis.2d 464, 464 N.W.2d 654, 657-658.) The District's evolving argument alone proves the pertinent portion of section 831.7, subdivision (a) is susceptible to more than one interpretation. Certainly the trial court thought "voluntarily" modified "participant." Either of the contrary interpretations put forward by the District is arguably correct. Therefore, we examine the legislative history of the statute in order to determine legislative intent. (In re Lance W. (1985) 37 Cal.3d 873, 886, 210 Cal.Rptr. 631, 694 P.2d 744; DeVito v. State of California (1988) 202 Cal.App.3d 264, 270, 248 Cal.Rptr. 330.)

Some background on section 831.7 (Assem.Bill No. 555 (1983-1984 Reg.Sess.)) is helpful. At the time Assembly Bill No. 555 came before the Legislature in 1983, existing law provided that property owners owed no duty to keep the land safe or to warn of dangerous conditions when people were permitted to enter or use the land for recreation. However, the owner was subject to liability for willful or malicious failure to guard or warn against a dangerous condition; injury where permission was given for consideration; or injury incurred by a person expressly invited to enter the land. (Civ.Code, § 846.) Appellate courts were divided on the issue of whether the immunity available to a landowner under Civil Code section 846 was applicable to a public entity landowner. ³

Assembly Bill No. 555, patterned after Civil Code section 846, sought to give a public entity and its employees specific qualified immunity from liability for injuries due to defined "hazardous recreational activity" on public property. The source of the bill was the Oakland East Bay Regional Park District; it received support from numerous park and recreation districts, municipalities and counties. These public entities desired to keep their land open to recreational users but sought some protection against increasing numbers of personal injury actions by public property users engaging in such activities as hang gliding and rock climbing, and attendant escalating insurance rates.

Pertinent to the issue raised, the analysis presented to the Senate Judiciary Committee noted the following as among the features of the proposed legislation:

"4. Limited liability to participant

"Except as provided, (e.g., gross...