Ochoa v. California State University, Sacramento

• Decision Date: 15 June 1999
• Docket Number: No. C030427,C030427
• Citation: 85 Cal.Rptr.2d 768,72 Cal.App.4th 1300
• Court: California Court of Appeals Court of Appeals
• Parties: , 134 Ed. Law Rep. 977, 99 Cal. Daily Op. Serv. 4713, 1999 Daily Journal D.A.R. 6017 John OCHOA, Plaintiff and Appellant, v. CALIFORNIA STATE UNIVERSITY, SACRAMENTO, Defendant and Respondent.

Page 768

85 Cal.Rptr.2d 768

72 Cal.App.4th 1300, 134 Ed. Law Rep. 977,

99 Cal. Daily Op. Serv. 4713,

1999 Daily Journal D.A.R. 6017

John OCHOA, Plaintiff and Appellant, v. CALIFORNIA STATE UNIVERSITY, SACRAMENTO, Defendant and Respondent.

No. C030427.

Court of Appeal, Third District, California.

June 15, 1999.

Review Denied, Sept. 22, 1999.

Smith & Burstein and Jack B. Burstein, Vallejo, for Plaintiff and Appellant.

Bill Lockyer, Attorney General, Darryl L. Doke and Steven M. Gevercer, Deputy Attorneys General, for Defendant and Respondent.

SIMS, J.

Plaintiff John Ochoa appeals following the dismissal of his personal injury complaint against defendant California State University on summary judgment. He contends that a triable issue of fact exists as to whether defendant had a duty to protect him against the injury he suffered at the hands of an opposing player in an intramural soccer game. ¹ We disagree. We also find that summary judgment could appropriately have been granted on alternative theory raised by defendant. Accordingly, we shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the evening of April 15, 1996, an indoor intramural soccer game was held at California State University, Sacramento (CSUS), between two teams of CSUS students: plaintiff's team, which represented Sierra Hall, a student dormitory, and a team representing the Hmong University Student Association (HUSA), on which codefendant Thoa played.

The game was the opening contest in an intramural competition held under the auspices of Recreational Sports (Rec Sports), which is described in the "Campus Recreation Guide" as "a service program of the CSUS Student Activities Office." Rec The student supervisor had refereed approximately 30 soccer games and had previously stopped games that appeared on the verge of violence, as Rec Sports regulations authorized him to do. There were two referees on the field during the game, each covering half the field.

Sports is primarily funded by student fees allocated by Associated Students Inc. (ASI), a non-profit corporation which represents students in matters of CSUS governance and provides them with services and grants, but is a separate corporate entity from CSUS. The referees of the soccer game and the "student supervisor" who oversaw them were employees of ASI.

According to the referees, the game was uneventful up until just before the altercation between plaintiff and Thoa, which took place during the second half. According to Thoa, however, in the five to ten minutes before the altercation there was escalating roughness, with uncalled fouls, pushing and shoving, and other forms of combative conduct, and the referees did not control these problems.

Shortly after a HUSA player tried to score, the Sierra Hall goalie ran forward and slide-tackled the HUSA player. They appeared to be struggling. According to Thoa, the referees did not blow the whistle or shout "stop."

Thoa approached the combatants. Thinking he saw an opposing player's fist swinging toward him, Thoa threw a punch. It caught plaintiff on the jaw. According to the referee nearest to the scene, Thoa's act happened too quickly for him to intervene, but he pulled Thoa and plaintiff apart as soon as the punch was thrown.

The referees immediately stopped the game and called the police.

Plaintiff sued CSUS in tort, alleging that CSUS negligently failed to supervise the game "and to instruct the participants therein relative to their conduct...." Thoa's battery of plaintiff was the direct, proximate and foreseeable result of such negligence. Therefore, CSUS was liable to plaintiff pursuant to Government Code sections 815.2, subdivision (a), 815.4, and 820. ² (All further undesignated section references are to the Government Code.)

After answering the complaint, CSUS moved for summary judgment on three grounds: 1. CSUS had no duty to plaintiff. 2. Even if it had a duty, it did not breach that duty. 3. CSUS was immune from liability under section 831.7, which provides in part:

"(a) Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity ... for any damage or injury to ... persons arising out of that hazardous recreational activity.

"(b) As used in this section, 'hazardous recreational activity' means a recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or spectator.

'Hazardous recreational activity' also means:

"......

"(3) ... body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants)...."

The trial court granted CSUS's motion on the first ground, finding under the authority of Crow v. State of California (1990) 222 Cal.App.3d 192, 271 Cal.Rptr. 349 that CSUS had no duty to plaintiff. The court did not reach CSUS's other defenses.

DISCUSSION

I

Summary judgment is properly granted to a defendant who shows that one or more essential elements of the plaintiff's cause of action cannot be separately established or that there is an affirmative defense which bars recovery, unless the plaintiff sets forth Plaintiff's opening brief attacks only the trial court's reason for granting summary judgment, ignoring the other two grounds raised by CSUS's motion. Since this court may affirm the grant of summary judgment on any ground properly raised below, whether or not addressed by the trial court, plaintiff's strategy is ill-advised. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376, 63 Cal.Rptr.2d 522.)

specific facts showing a triable issue of material fact as to that cause of action or defense. (Code Civ. Proc., § 437c, subds. (n), (o)(2).)

CSUS renews all three grounds in its respondent's brief. Plaintiff belatedly offers argument on the latter grounds in his reply brief. We could refuse to consider those untimely arguments. (See Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8, 265 Cal.Rptr. 788.) However, since plaintiff's belated argument did not deprive CSUS of an opportunity to address the issues (ibid.), we shall address his contentions as to the grounds on which summary judgment is properly affirmed.

II

In Crow v. State of California, supra, 222 Cal.App.3d 192, 271 Cal.Rptr. 349, this court rejected the claim of an adult college student who was beaten by an intoxicated fellow student in a dormitory that the defendant university was liable to the plaintiff in tort for negligently operating, maintaining, and supervising the dormitory. (Id. at pp. 196-197, 271 Cal.Rptr. 349.) We held that the usual rule of nonliability for the criminal conduct of a third party, absent a special relationship between the plaintiff and the defendant which imposed a duty on the defendant to protect the plaintiff from the type of harm that occurred, applied on these facts. (Id. at pp. 208, 271 Cal.Rptr. 349.)

We specifically found that the plaintiff's affiliation with CSUS as a student did not create a special relationship imposing a duty of care on CSUS. Unlike high school students, whose attendance is compelled and over whom school officials have direct responsibility while the students are at school, adult college students attend school and participate in school activities voluntarily. (Crow v. State of California, supra, 222 Cal.App.3d at pp. 208-209, 271 Cal.Rptr. 349.) Furthermore, since college administrators have abandoned in loco parentis supervision of adult students and have recognized the students' rights to control and regulate their own lives, colleges and universities may no longer be charged with a general duty of care to supervise student activities. (Id. at p. 209, 271 Cal.Rptr. 349; see also Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 287-291, 176 Cal.Rptr. 809.)

Plaintiff contends that Crow does not control this case because CSUS expressly took responsibility for supervising the events at issue, thus creating the special relationship and duty to the participants which we found not to exist in Crow. However, he cites no authority holding that a college or university forms a special relationship with its adult students, giving rise to a duty to protect them from the criminal acts of third parties, merely by organizing and sponsoring an intramural activity, and we are aware of no such authority.

Plaintiff quotes provisions in the CSUS-issued referees' handbook which authorize referees to eject disorderly participants and spectators, to penalize their teams, and to call in the campus police to control physically abusive or threatening participants and spectators. But if CSUS's bestowal of such "police powers" on referees created a special relationship between CSUS and its adult students who participate in intramural events, then every local government would create a special relationship with its citizens merely by establishing a police force. The law is otherwise. (See, e.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197, 185 Cal.Rptr. 252, 649 P.2d 894.)

Finally, we agree with CSUS that general tort law and public policy militate against creating the duty plaintiff argues for. Applying the well-known Rowland v. Christian factors, ³ as plaintiff urges us to do, we find only two that count in his favor. First, it Plaintiff has shown no basis on these facts for an exception to the Crow rule that institutions of higher education have no duty to their adult students to protect them against the criminal acts of third persons. Thus, we conclude that the trial court correctly granted summary judgment on this ground.

was certain that the plaintiff suffered injury. Second, the harm plaintiff suffered, a punch thrown by a participant in the course of a hotly contested soccer game, was reasonably foreseeable. However, the connection between the defendant's alleged conduct (negligent refereeing) and the...