Jimenez v. Roseville City Sch. Dist.

• Decision Date: 19 May 2016
• Docket Number: C075366
• Citation: 202 Cal.Rptr.3d 536,247 Cal.App.4th 594
• Court: California Court of Appeals Court of Appeals
• Parties: Uriel JIMENEZ, a Minor, etc., et al., Plaintiff and Appellant, v. ROSEVILLE CITY SCHOOL DISTRICT, Defendant and Respondent.

247 Cal.App.4th 594

202 Cal.Rptr.3d 536

Uriel JIMENEZ, a Minor, etc., et al., Plaintiff and Appellant

v.ROSEVILLE CITY SCHOOL DISTRICT, Defendant and Respondent.

C075366

Court of Appeal, Third District, California.

Filed May 19, 2016

Rhoads Appellate Group, Steven R. Rhoads, San Rafael; Scarlett Law Group and Randall H. Scarlett, San Francisco, for Defendant and Appellant.

Evans, Wieckowski, Ward & Scoffield and Carol A. Wieckowski, Sacramento, for Plaintiff and Respondent.

Duarte

, J.

Plaintiff Uriel Jimenez (Jimenez) was injured at a middle school within defendant Roseville City School District (District). The 14–year old Jimenez was in a classroom where fellow middle school students were purportedly practicing break dancing, but in which some were also performing “flips.” This violated school rules in two ways: first, students had been ordered not to perform flips; second, the teacher who allowed the students to use his classroom for dancing violated school policy by leaving them unsupervised. Jimenez was seriously injured when other students waited for the teacher to leave them unsupervised, and then induced Jimenez to attempt a flip. The trial court granted the District summary judgment, concluding Jimenez assumed the risk of injury by participating in break dancing.

As we will explain, viewing the evidence in the light most favorable to Jimenez, we find two viable theories of liability. Accordingly, we shall reverse and remand with directions to the trial court to deny the District's summary judgment motion.

BACKGROUND

The briefing agrees on most of the relevant facts. (See Meddock v. County of Yolo (2013) 220 Cal.App.4th 170, 175, fn. 3, 162 Cal.Rptr.3d 796

[summary judgment case; “where the parties agree, we accept their agreed facts as mutual concessions”].)

The operative complaint alleged negligence and negligent supervision. The answer partly raised assumption of the risk. The summary judgment motion raised assumption of the risk and a defense based on a signed release.¹

The District's supporting evidence included deposition excerpts as follows.

Student Paul Jackson testified students break danced before school, including doing flips, and that Alan Hall, a District teacher, then gave the students a place to practice in order to participate in a talent show. Flips had been witnessed by school officials and had not been forbidden by Assistant Principal Gutierrez. The students practiced in Hall's classroom before school started. Jacob Simmons flipped Jackson when Hall was outside the room, then flipped Jimenez, who was injured as a result. Jimenez was hesitant about flipping, but did not actively protest. Hall gave no instructions about flipping.

Simmons testified that flips are part of break dancing. Gutierrez never told them not to flip off a stage. Hall later invited the boys to use his classroom to dance, “maybe” three weeks before the incident. Hall never forbade flips. Jimenez was “iffy” about learning to flip but agreed to try to flip at a time when Hall was not in the classroom, and Jimenez was then injured.

Jimenez testified he had been to four other dance rehearsals in Hall's class, but none in other places before he was hurt. However, he had seen the other boys practicing on an outside stage before, and saw Jackson do back flips more than once before. Gutierrez had been present when Jackson was flipping on the stage, but did not tell Jackson to stop flipping. On the day in question, Hall had left the class without saying anything to the boys, and then Jackson and Simmons did flips. Jimenez has no memory of how he became injured.

Julius Larion testified a group had been practicing a dance routine for a talent show for about a week. Jimenez “wanted to ... learn how to dance.” Before Hall's room was used, the boys had used the gym, and did flips. Jimenez could not dance and had never tried to flip before.

Zachary Farr testified Simmons grabbed Jimenez's arm, and Jimenez protested, saying “no, no, no” and Simmons flipped Jimenez.

In opposition, Jimenez in part presented the following evidence:

Daniel Etcheto, a break dancing expert, described break dancing in some detail. In short, he opined ordinary break dancing did not involve flips, but that some break dancers with gymnastic or Capoeira ability or experience may incorporate flips into their dancing. We discuss his declaration more fully post .

Richard Swanson, a school administration expert, testified that Hall violated supervisory norms by leaving the students unsupervised in violation of District policy, and by not giving the students “instruction about ground rules for their practice which would specifically mention prohibitions on risky behavior.” Hall's actions were “totally outside the range of ordinary activity involved in a teacher's role for a dance class or activity.”

Hall testified he was a computer and math teacher. He also coached cross country and track. Simmons asked Hall if they could practice break dancing for an upcoming talent show in his classroom, and Hall had the boys fill out the requisite release forms. Hall has no formal training at break dancing, had minimal experience with it from when he was a seventh-grader, and all he did as far as a demonstration for the students was to spin on his back and jump up, and perform a robotic move associated with Michael Jackson. He did not tell the principal or vice principal that he was allowing students to use his classroom before school hours because “[i]t didn't seem necessary.” He regularly left the classroom for short periods of time during the practice sessions, to make copies, use the bathroom, or make a telephone call. He did not tell the students to stop their activity when he was gone, because “[i]t didn't seem necessary.” He had not been aware of any school rule requiring him to be present all the time or any school rule prohibiting flips, and he had not known flips were being done, nor did he know that flips were part of break dancing. He had left for the bathroom at the time Jimenez was injured.

Assistant Principal Pablo Gutierrez testified he did not know what was happening in Hall's classroom before the accident, and school policy dictated that there should have been supervision at all times, and that if a teacher left such a classroom, another teacher should have been supervising, or the students should have been instructed to stop their activity until their teacher returned. Before Jimenez's injury, Gutierrez had seen a student—part of a group that included Simmons and Jackson—flipping near a stage and he told that student to stop and said he did not want to see “ ‘anybody trying’ ” to flip; when the students moved to a grassy area, he again told them not to flip. On at least one of four occasions where he made such admonishments, Jimenez was present, though Jimenez had not been flipping. In Gutierrez's opinion, Hall should not have left for the bathroom without telling the students to stop their activity and without finding another teacher to supervise them in his absence. He did not associate break dancing with flipping; in his view: “[R]emember, there are two things here. Break dancing is totally different from what I have in mind of flipping.”

The trial court found it was undisputed that break dancing “can involve flips,” Jimenez assumed the risk of injury from such flips by voluntarily break dancing, and the District had no duty to protect Jimenez from the inherent risks of break dancing. Jimenez timely appealed from the ensuing judgment.

DISCUSSION

I

Standard of Review

We have recently restated the applicable standard of review in summary judgment appeals by plaintiffs as follows: “ ‘We review the trial court's grant of summary judgment de novo. [Citation.] We consider all the evidence offered in connection with the motion, except that which the trial court properly excluded. [Citation.] In conducting our de novo review, we must view the evidence in a light favorable to plaintiffs, liberally construing their evidentiary submission while strictly scrutinizing defendant's showing, and resolving any evidentiary doubts or ambiguities in plaintiffs' favor.’ ” (Leber v. DKD of Davis, Inc . (2015) 237 Cal.App.4th 402, 406, 187 Cal.Rptr.3d 731

; see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493 (Aguilar ).)

II

Assumption of the Risk Generally

Before addressing Jimenez's claims, we briefly describe assumption of risk.

“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm. Secondary assumption of risk applies when the defendant does owe a duty, but the plaintiff has knowingly encountered a risk of injury caused by the defendant's breach. Liability in such cases is adjudicated under the rules of comparative negligence.” (Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 176 Cal.Rptr.3d 1, 331 P.3d 179

.) “Secondary assumption of risk ... is predicated on the existence of a duty. ‘The first question is whether the defendant has breached a duty to the plaintiff. The duty analysis depends on the nature of the activity ... and the parties' relationship to it.’ ” (Id . at p. 1007, 176 Cal.Rptr.3d 1, 331 P.3d 179 ; see Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178, 119 Cal.Rptr.2d 497

.)

“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports. [Citation.] Primary assumption of risk is a complete bar to recovery. [Citation.]

“Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity. The overriding consideration in the application of this principle is to avoid imposing a duty which might chill vigorous participation in the

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