Mayes v. La Sierra Univ.

• Citation: 73 Cal.App.5th 686,288 Cal.Rptr.3d 693
• Decision Date: 07 January 2022
• Docket Number: E076374
• Parties: Monica MAYES, Plaintiff and Appellant, v. LA SIERRA UNIVERSITY, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

73 Cal.App.5th 686

288 Cal.Rptr.3d 693

Monica MAYES, Plaintiff and Appellant,

v.LA SIERRA UNIVERSITY, Defendant and Respondent.

E076374

Court of Appeal, Fourth District, Division 2, California.

Filed January 7, 2022

Angelo & Di Monda and Joseph Di Monda, Manhattan Beach, for Plaintiff and Appellant.

The Lee Law Group, Ted M. Lee and Charles F. Nikolenko, Irvine, for Defendant and Respondent.

OPINION

FIELDS, J.

I. INTRODUCTION

On April 22, 2018, plaintiff and appellant Monica Mayes was struck in the face by a foul ball while attending an intercollegiate baseball game between two private universities, Marymount University (Marymount) and defendant and respondent La Sierra University (La Sierra). Mayes suffered skull fractures and brain damage, among other injuries. When struck by the foul ball, Mayes was seated in a grassy area along the third-base line, behind the dugout, which extended eight feet above the ground, and there was no protective netting above the dugout.

Mayes sued La Sierra for her injuries, alleging a single cause of action for negligence. Mayes alleged that La Sierra was negligent for multiple reasons, including its failure to (1) install protective netting over the dugouts, (2) provide a sufficient number of screened seats for spectators, (3) warn spectators that the only available screened seats were in the area behind home plate, and (4) exercise crowd control in order to remove distractions in the area along the third-base line that diverted spectators' attention from the playing field.

La Sierra moved for summary judgment, claiming that the primary assumption of risk doctrine barred Mayes's negligence claim. The trial court agreed and granted the motion, observing that the case was "a textbook primary assumption of the risk case." We reverse. For reasons we explain, La Sierra did not meet its burden of showing that the primary assumption of risk doctrine barred Mayes's negligence claim. In addition, Mayes showed there were triable issues of material fact concerning whether La Sierra was negligent for the reasons she alleged in her complaint.

II. FACTS AND PROCEDURAL BACKGROUND

A. The Allegations of Mayes's Complaint

As noted, Mayes's complaint alleges that La Sierra was negligent in causing her injuries for multiple reasons. First, La Sierra's field did not have protective netting over its dugouts, in order to protect spectators from batted and foul balls and broken bats. Other colleges, including Marymount, had protective netting "all along and including over the dugout on the first-and third-base lines." La Sierra knew or reasonably should have known that the standard of care was to provide safety netting along the first-and third-base lines, up to, over, and past the dugout areas.

Second, La Sierra did not post signs or otherwise warn spectators that there was no protective netting over the dugouts. Protective netting or screening of spectator areas is so "ubiquitous" at baseball fields that Mayes did not realize that La Sierra's field lacked sufficient protective netting or screening.

Third, La Sierra did not provide a sufficient number of screened or protected seats for as many people as La Sierra reasonably should have expected would want them at the April 22, 2018 game—a playoff game with unusually high attendance. La Sierra provided two portable seating stands behind home plate, which were protected by the backstop fencing, but each portable stand only seated around 20 people. The portable stands were on rocky and uneven ground and swayed when walked on, creating a risk of injury to people who used them. La Sierra did not provide any other seating, including screened seating along the first-or third-base lines, which could have reduced the risk of being struck by a foul ball. Mayes was unable to place her folding chair behind home plate due to the uneven ground, so she placed her chair along the third-base line, where there was no safety netting over the dugout.

Fourth, La Sierra failed to exercise crowd control, resulting in multiple distractions that increased the risk that Mayes would be injured. La Sierra allowed people to erect folding chairs, tents, and umbrellas along the third-base line, and to walk around the third-base line area, creating distractions and obstructing Mayes's view of the field and foul balls coming into the seating area.

La Sierra answered the complaint, generally denying its allegations and alleging as affirmative defenses that plaintiff's negligence claim was barred both by "assumption of risk" and Civil Code section 846.

B. La Sierra's Motion for Summary Judgment

La Sierra moved for summary judgment, claiming that Mayes's negligence cause of action was barred by both (1) the primary assumption of risk doctrine, and (2) the "recreational use" immunity statute, Civil Code section 846.¹ In support of its motion, La Sierra adduced deposition testimony of Mayes and La Sierra's athletics director. This evidence showed the following:

La Sierra did not sell tickets or charge admission to the April 22, 2018 game and did not tell spectators where they could sit at its games. Mayes chose her seat, in an unscreened area along the third-base line, where she could see her son who was pitching for Marymount, but she could not see the batters. Until she was struck by the foul ball, Mayes did not feel unsafe in her seat.

Before the April 22, 2018 game, Mayes had attended 300 to 400 baseball games in which her two sons had played. Mayes was generally familiar with baseball and had seen balls hit into the stands. She did not need a posted sign to advise her that batted balls could go into the stands.

According to La Sierra's athletic director, since 2009 there had been no reported incidents of a spectator being injured by a foul ball at La Sierra's field, other than Mayes's incident. At the April 22, 2018 game that Mayes attended, there were portable bleachers for seating, and spectators were free to set up their own seating "wherever they chose." La Sierra did not ask any of the spectators to take their tents or umbrellas down or to sit behind the backstop behind home plate. La Sierra's practice was "to assist with crowd control" only when an umpire asked, and the umpire at the April 22, 2018 game did not ask La Sierra to assist with crowd control. There was "no requirement" for a California Pacific Conference institution, or an NAIA (National Association of Intercollegiate Athletics) institution, such as La Sierra, to "put netting by the dugouts" of their baseball fields. It is a "normal occurrence" for balls to be batted outside the field of play and into the spectator seating areas.

C. Mayes's Opposition

In her opposition, Mayes adduced her own declaration and the declaration of Gil Fried, an expert in "ballpark safety and management," including "foul ball safety." Mayes adduced additional excerpts of her deposition testimony and the deposition testimony of La Sierra's athletic director.

1. Mayes's Additional Statements

Mayes drove to the April 22, 2018 playoff game with her husband. Marymount had advertised the game, and Mayes had been told that the families of the teams were welcome to watch the game. La Sierra permitted Mayes and her husband to enter La Sierra's campus through a guarded gate and park in a lot designated for the public. Mayes first looked for seats behind home plate, but there was only one seat available on one of the unstable portable bleachers, and the bleachers were on a hilly, rocky, and dirt-covered area. The dirt was blowing around and making it "potentially dangerous" to sit in that area.

Mayes and her husband placed their folding chairs in the grassy area along the third-base line, where hundreds of other spectators had placed their chairs, tents, and umbrellas. There was no crowd control; no La Sierra personnel were present to control the hundreds of spectators or tell them where to sit. There were also no posted signs, advising people that they may ask La Sierra's athletic director or the umpire to assist in crowd control. La Sierra allowed hundreds of spectators to walk around and to erect tents and umbrellas, generally causing distractions and blocking Mayes's view of the game. The above-ground dugout also blocked Mayes's view of the batters. The distance from Mayes's chair to the playing field was approximately 60 feet.

Mayes was not concerned for her safety because every baseball field in which she had been over the previous 15 years had had protective netting over the dugouts and, for that reason, Mayes believed that La Sierra's field had the same protective netting. Mayes did not look for the protective netting but expected it to be there. She had never seen a spectator hit by a foul ball at any college baseball game because spectators were always protected by "netting and/or fencing." Marymount's home field had protective netting from home plate "all along and including over the dugout on both the first- and third-base lines." There were no posted signs at La Sierra's field, telling spectators that the only protected seats were behind home plate.

During the game, a batted ball "flew over the dugout" and struck Mayes in her face, causing her serious physical injury, including broken facial bones, cuts, eye damages, contusions, and brain damage. Mayes was unable to see the foul ball as it came toward her because the raised dugout blocked her view of the batter and people were "walking about causing distractions."

2. Gil Fried's Expert Declaration

Gil Fried, a college professor and an expert on "ballpark safety and management," has written articles and books about safety concerns at sports facilities, including, in the baseball context, "foul ball safety." Fried has qualified to testify as an expert in 10 "foul ball and hockey puck-related cases."

Fried opined that the flat, grassy area along the third-base line at La Sierra's field, where Mayes was sitting when she was struck by a foul ball, was too close to the playing field and "violate[d] the...