James Wolf v. Paseo Aquatics Sports, LLC

• Docket Number: B324969
• Decision Date: 21 December 2023
• Parties: ZECHARIAH DONALD JAMES WOLF, Plaintiff and Appellant, v. PASEO AQUATICS SPORTS, LLC, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

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ZECHARIAH DONALD JAMES WOLF, Plaintiff and Appellant, v. PASEO AQUATICS SPORTS, LLC, Defendant and Respondent.

B324969

California Court of Appeals, Second District, Sixth Division

December 21, 2023

NOT TO BE PUBLISHED

Superior Court County of Ventura, No 56-2020-00539621-CU-PO-VTA Hon. Benjamin Coats, Judge

Law Offices of Victor L. George, Victor L. George and Meylin P Alfaro; Esner, Chang, Boyer & Murphy, Andrew N. Chang Stuart B. Esner, and Rowena J. Dizon, for Plaintiff and Appellant.

Hosp, Gilbert & Bergsten, Robert T. Bergsten; Matthew G. Evans and Marco Garcia Castillo, for Defendant and Respondent.

CODY J.

Zechariah Wolf appeals from the order granting summary judgment for respondent Paseo Aquatics Sports, LLC (Paseo). Wolf contends that triable issues of material fact exist as to whether Paseo is protected by the primary assumption of risk doctrine. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Wolf, a 17-year-old member of Paseo, collided head-on with teammate Ethan Lee while warming up for a swim meet. At the meet, each swim club was assigned a specific lane in which to warm up. Wolf's coach, Grant Richman, instructed 15 to 20 swimmers to "circle swim" counter-clockwise in their assigned lane. Wolf swam behind Lee. Lee made a flip turn, pushed off the wall, and "collided head-to-head" with Wolf.

Wolf alleged Paseo was vicariously liable for Coach Richman's negligent conduct because he "made the event unsafe by placing 15-20 minor swimmers, including [Wolf], in one lane." He sought damages and medical expenses incurred as a result of the "catastrophic injuries" he suffered, including "head trauma, traumatic brain injury, and neck injury."

The trial court granted Paseo's motion for summary judgment, finding Wolf assumed the inherent risk of colliding with another swimmer when he participated in the warm-up swim.

DISCUSSION

Wolf contends the trial court erred in granting summary judgment because triable issues of material fact exist as to whether Coach Richman increased the risks of competitive swimming beyond those inherent in the sport. We disagree.

Standard of Review

"[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).)^[1] A defendant moving for summary judgment "bears the burden of persuasion that 'one or more elements of' the 'cause of action' in question 'cannot be established,' or that 'there is a complete defense' thereto. [Citation.]" (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar); § 437c, subd. (p)(2).)

"On appeal from the granting of a motion for summary judgment, we examine the record de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.)

Primary Assumption of Risk Doctrine

"Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation." (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003 (Kahn).) "The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.]" (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)

The doctrine provides: "defendants generally do not have a duty to protect the plaintiff from the risks inherent in the sport, or to eliminate risk from the sport, although they generally do have a duty not to increase the risk of harm beyond what is inherent in the sport." (Kahn, supra, 31 Cal.4th at p. 1004, italics added.) Courts have applied the rule to sports instructors or coaches, "keeping in mind, of course, that different facts are of significance in each setting." (Kahn, at p. 1011.) The rule extends to "noncontact competitive sports" as well. (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1633.)

Generally, "[a] sports instructor may be found to have breached a duty of care to a student or athlete only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is 'totally outside the range of the ordinary activity' [citation] involved in teaching or coaching the sport." (Kahn, supra, 31 Cal.4that p. 996, italics added.) If the conduct "cannot be prohibited without deterring vigorous participation in the sport or otherwise fundamentally altering the nature of the sport," the court is less likely to find a breach. (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1396.)

Determining whether the doctrine applies requires analysis of both the "the nature of the sport or activity in question" and "the parties' general relationship to the activity." (Knight v. Jewett (1992) 3 Cal.4th 296, 313 (Knight), citing 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 748, pp. 83-86.) When the facts are undisputed, application of the doctrine is a question of law for the court to decide. (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69.)

Coach Richman Did Not Increase the Risks Inherent in Competitive Swimming

The first step in analyzing a motion for summary judgment is to identify the issues. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) "Summary judgment cannot be granted on a ground not raised by the pleadings. [Citation.] Conversely, summary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]" (Bostrom v County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663, italics omitted.) "The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition." (Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.)

Wolf's second amended complaint alleges Paseo "knew that it was unsafe to allow 15-20 minor swimmers to swim in one lane all at one time because of the potential for concussion." He described this as "a common practice" during meets sanctioned by USA Swimming.^[2] The defendants "continued with this dangerous practice despite this knowledge, sacrificing swimmer safety for ill-perceived [sic] expediency and practicality." He alleges "each Defendant . . . had the power and authority to stop this unsafe practice." With respect to Paseo, Wolf alleges Coach Richman "was in charge of . . . supervising Plaintiff at the event [and he] could have banned the Plaintiff from warming up with 15 to 20 minor swimmers in the same lane at the same time." He alleges the danger created by this practice "was not an inherent risk of a swim meet, vastly and unreasonably increasing the risks to Plaintiff over and above those inherent in a swim meet."

Paseo's motion for summary judgment did not dispute Wolf's allegations about the number of swimmers in each lane or the manner in which the collision occurred. Instead, Paseo presented evidence that: coaches tell swimmers to enter the water with a three-point entry, without diving, one to two body lengths apart; the number of swimmers in each lane is determined by the number of lanes assigned to a team by the host team; Paseo had no control over the number of lanes it is assigned for warm-ups at swim meets; that limiting warm-ups to one or a very small number of swimmers per lane "would fundamentally alter the sport" by making it "likely . . . impossible for a group of swimmers to warm up simultaneously"; and doing so "would have the potential of significantly delaying the start of the swim meet."

Wolf contends the motion must fail because Paseo did not "demonstrate all the elements of primary assumption of risk." He argues Paseo failed to introduce its own evidence describing "the nature of the warm-up swim," "specify[ing] Coach Richman's role and relationship to that warm-up swim," and showing "Coach Richman did not increase that inherent risk [of head on collisions]" or "act totally outside the ordinary activity involved in coaching the sport." (Italics omitted.) We disagree. While Paseo's moving papers were skeletal, it need not have produced its own evidence to prevail on summary judgment. The doctrine of judicial admission allows a moving party to use allegations from the non-moving party's pleadings to eliminate triable issues of material fact. (Mark Tanner Constr., Inc. v. HUB Internat. Services, Inc. (2014) 224 Cal.App.4th 574, 586-587.) Similarly, the moving party may seek judgment as a matter of law by challenging the sufficiency of the non-moving party's pleadings. (See Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682 ["A motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings"]; Valdez v. City of Los Angeles (1991) 231 Cal.App.3d 1043, 1055 ["When a motion for summary judgment is used to test whether the complaint states a cause of action, the court will apply the rule applicable to demurrers and accept the allegations of the complaint as true"].)

The doctrine of primary assumption of the risk, while sometimes denominated as an affirmative defense, is a matter of duty. A plaintiff bears the burden to establish both the...