Kahn v. East Side Union High School Dist.

• Citation: 96 Cal.App.4th 781,117 Cal.Rptr.2d 356
• Decision Date: 27 February 2002
• Docket Number: No. H021239.,H021239.
• Parties: Olivia KAHN, a minor, etc., Plaintiff and Appellant, v. EAST SIDE UNION HIGH SCHOOL DISTRICT, et al., Defendants and Respondents.
• Court: California Court of Appeals

117 Cal.Rptr.2d 356

96 Cal.App.4th 781

Olivia KAHN, a minor, etc., Plaintiff and Appellant, v. EAST SIDE UNION HIGH SCHOOL DISTRICT, et al., Defendants and Respondents.

No. H021239.

Court of Appeal, Sixth District.

February 27, 2002.

Rehearing Denied March 22, 2002.

Review Granted June 12, 2002.

Patrick R. McMahon, Lydia J. Carlsgaard, Attorneys for Plaintiff and Appellant.

Mark E. Davis, Needham, Davis, Kirwan & Young LLP, Attorney for Defendants and Respondents.

WUNDERLICH, J.

In this personal injury action, an injured student athlete sued her coach and her school district, claiming negligence and premises liability. The trial court granted the defendants summary judgment on both causes of action. Addressing the plaintiffs negligence claim, the court determined that it was barred by the doctrine of primary assumption of the risk. As to the plaintiffs premises liability claim, the court concluded that there was no material factual dispute requiring trial of that cause of action.

As we explain below, we agree with the trial court's determinations. We therefore affirm the judgment.

FACTS

The plaintiff and appellant in this action is Olivia Kahn (plaintiff). The defendants and respondents are East Side Union High School District (District) and Andrew McKay (McKay), a District employee and plaintiffs swim coach. This lawsuit arose out of a tragic diving accident, which occurred just prior to a swim meet at Mount Pleasant High School in October 1994.

At the time of the accident, plaintiff was 14 years old. She had joined the Mount Pleasant High School girls' swim team the previous month, at the start of her freshman year at the high school. Prior to that time, plaintiff had never swum competitively, even though she learned to swim at an early age and had been swimming most of her life.

Despite her experience as a swimmer, and despite her ability to dive into a deep pool, plaintiff had a lifelong fear of diving into a shallow pool. At the time she joined the swim team, plaintiff communicated that fear to defendant McKay, her coach. In response, McKay indicated that he would assign plaintiff to the first leg of the relay—an assignment that allowed her to start the race from inside the pool and obviated the need to dive.

There is a factual dispute about the extent of the diving training, if any, that plaintiff received from her coaches while on the swim team. McKay recalls training plaintiff to dive, working with her several times in the deep pool and at least once in the shallow racing pool. But according to plaintiffs declaration, "neither Mr. McKay nor [the other swim coach] Ms. Tracy ever taught me or gave me any instruction, oral or written, on how to dive into either the deep pool or the racing pool.... [¶] The only instruction I ever received on diving before the accident was on one occasion off the deck in the deep pool, from two girls on the swim team...."

Plaintiff participated in at least two swim meets before the day of the accident, without being required to dive during those competitions. In each of those early meets, she swam the first leg of the relay race, starting from inside the pool.

The day of the accident presented a different challenge, however. On that day, plaintiffs team was competing in its home pool against a team from another high school. Shortly before the meet was to start, McKay told plaintiff that she would not be swimming the first leg of the relay. That meant that plaintiff could not start from inside the pool, but instead would have to dive into the water from the starting blocks or from the edge of the pool. According to plaintiffs declaration, the coach's decision "put me in a state of panic. I begged the coach to change the rotation so that I could start from inside the pool. I told him I was afraid to dive, that I did not know how to do the dive and that I had never dove into the racing pool in my life. Mr. McKay said you either dive in off the blocks or you are not swimming."

With the relay race scheduled to start minutes later, plaintiff took it upon herself to practice the racing dive, with assistance from two of her fellow swimmers. According to his declaration and his deposition testimony, McKay did not know plaintiff was practicing the racing dive. Plaintiff offered no evidence to the contrary, although she did assert that the coach "could reasonably expect that ... she would try and prepare herself." Plaintiff completed two practice dives from the starting blocks into the shallow racing pool without incident. On the third dive, she broke her neck.

The salient facts about Mount Pleasant High School's racing pool are undisputed. The racing pool is three and one-half feet deep at each end. The pool has six swimming lanes. Each lane has a starting block. The starting blocks are 18 inches above the surface of the racing pool and slant toward the water at a 10-degree angle. The top surface of the blocks is a grainy-textured, anti-slip material. The racing pool and the starting blocks conform to the applicable specifications of the National Federation of State High School Associations in effect at the time of plaintiffs accident.

PROCEDURAL HISTORY

Plaintiff filed this lawsuit in October 1995. Because she was a minor at the time she commenced this action, plaintiff brought suit by and through her guardian ad litem, Sandy Kahn. Plaintiff named the District and McKay as defendants, along with Does 1-10. Plaintiffs complaint included two causes of action, one for premises liability and one for negligence.

In November 1999, defendants moved for summary judgment as to both causes of action. Plaintiff opposed the motion.

Following a hearing in January 2000, the trial court granted summary judgment in defendants' favor. The court first determined that defendants were entitled to judgment as a matter of law on plaintiffs negligence cause of action, based on the doctrine of primary assumption of the risk. The court further determined that plaintiff failed to raise a triable issue of fact with respect to her cause of action for premises liability. Judgment for defendants was entered on January 21, 2000.

Thereafter, plaintiff moved for a new trial. The court heard and denied the motion in February 2000.

This timely appeal by plaintiff ensued. ISSUES

On appeal, plaintiff asserts that triable issues of material fact preclude summary judgment here, both as to negligence and as to premises liability.

DISCUSSION

I. Summary Judgment.

A. Standard and Scope of Review.

Since summary judgment involves pure matters of law, we review a grant of summary judgment de novo. (Buss v. Superior Court (1997) 16 Cal.4th 35, 60, 65 Cal. Rptr.2d 366, 939 P.2d 766; Barton v. Elexsys Internal, Inc. (1998) 62 Cal.App.4th 1182, 1187, 73 Cal.Rptr.2d 212.) We are not bound by the trial court's stated reasons for granting summary judgment. (Rubenstein v. Rubenstein (2000) 81 Cal. App.4th 1131, 1143, 97 Cal.Rptr.2d 707.) "`We review the ruling, not its rationale.' [Citation.]" (Ibid.)

In undertaking our independent review of the evidence submitted, we apply the same three-step analysis as the trial court. First, we identify the issues framed by the pleadings. Next, we determine whether the moving party has established facts justifying judgment in its favor. Finally, if the moving party has carried its initial burden, we decide whether the opposing party has demonstrated the existence of a triable, material fact issue. (Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal. App.4th 880, 886-887, 41 Cal.Rptr.2d 740.)

B. Entitlement to Summary Judgment: Required Showing

A summary judgment motion "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).) To be entitled to judgment as a matter of law, the moving party must show by admissible evidence that the "action has no merit or that there is no defense." (Code Civ. Proc., § 437c, subd. (a).) A defendant moving for summary judgment meets this burden by presenting evidence demonstrating that one or more elements of the cause of action cannot be established or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (o)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 213-214, 51 Cal. Rptr.2d 642.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o )(2). See, Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Material facts are those that relate to the issues in the case as framed by the pleadings. (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, 15 Cal. Rptr.2d 598; Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65; Lowe v. California League of Prof Baseball (1997) 56 Cal.App.4th 112, 122, 65 Cal.Rptr.2d 105.) The moving party's evidence is strictly construed, while that of the opponent is liberally construed. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46; Murillo v. Rite Stuff Foods, Inc. (1998) 65 Cal.App.4th 833, 840-841, 77 Cal. Rptr.2d 12.)

C. Application to this case.

With those principles in mind, we consider whether defendants have established entitlement to summary judgment as to either or both of plaintiffs causes of action.

With respect to plaintiffs cause of action for negligence, our determination will turn on whether the doctrine of assumption of the risk applies in this case as a matter of law. To the extent our decision rests on an analysis of defendants' legal duty toward plaintiff, it is particularly amenable to resolution by summary judgment. (Knight v. Jewett (1...