Yancey v. Superior Court

• Citation: 33 Cal.Rptr.2d 777,28 Cal.App.4th 558
• Decision Date: 20 September 1994
• Docket Number: No. F021454,F021454
• Court: California Court of Appeals
• Parties: , 94 Ed. Law Rep. 394 Patricia A. YANCEY, Petitioner, v. The SUPERIOR COURT of Stanislaus County, Respondent; Sunny NEAL, Real Party in Interest.

Page 777

33 Cal.Rptr.2d 777

28 Cal.App.4th 558, 94 Ed. Law Rep. 394

Patricia A. YANCEY, Petitioner, v. The SUPERIOR COURT of Stanislaus County, Respondent Sunny NEAL, Real Party in Interest.

No. F021454.

Court of Appeal, Fifth District, California.

Sept. 20, 1994.

[28 Cal.App.4th 560] Sherry B. Bowers, Terry J. Thomas, Bowers, Thomas & Associates, Truckee, for petitioner.

No appearance for respondent.

Jack M. Jacobson, Curtis & Arata, Modesto, for real party in interest.

OPINION

THAXTER, Associate Justice.

Petitioner Patricia A. Yancey was struck on the head by a discus thrown by a classmate during a community college physical education class. This case raises an issue left unaddressed in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696: whether the limited duty of care applicable to coparticipants in such sports as football, baseball, and skating should be applied to coparticipants in a discus class.

FACTS

According to the allegations in Yancey's complaint, she and Sunny Neal (defendant below) were participating in a physical education discus class at Modesto Community College. Yancey threw her discus and walked onto the field to retrieve it. Neal, who was throwing next, failed to observe the field before throwing the discus, failed to warn Yancey he was about to throw, and failed to observe elementary safety precautions before throwing the discus. His "carelessly" thrown discus struck Yancey's head causing physical and mental injuries.

PROCEDURAL HISTORY

Yancey sued Neal and others alleging three causes of action for general negligence, products liability, and battery. Neal moved for summary judgment/summary adjudication contending there were no triable issues of fact regarding any of Yancey's claims. Yancey opposed the motion. The trial court granted summary adjudication of the products liability and battery causes of action, and Yancey does not challenge those rulings. The court also granted judgment on the pleadings on the negligence claim, concluding the primary assumption of risk doctrine as defined in Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 applied to a coparticipant sport such as discus. Thus, Neal was not liable for ordinary careless conduct committed during the sport and would be liable to Yancey amended her complaint to allege such conduct and also applied to this court for writ relief. We issued an order to show cause.

Yancey only if he engaged in reckless or intentional conduct totally outside the range of the ordinary activity involved in the sport.

DISCUSSION

1. Standard of Review

Because a defendant's motion for summary judgment necessarily includes a test of the sufficiency of the complaint, the trial court properly treated Neal's motion as one for judgment on the pleadings. (C.L. Smith Co. v. Roger Ducharme, Inc. (1977) 65 Cal.App.3d 735, 745, 135 Cal.Rptr. 483.) ¹ On review we must determine if the complaint states a cause of action as a matter of law. "A judgment on the pleadings is governed by the standards governing a judgment following a successful demurrer. [Citation.] A general demurrer admits the truth of all material facts alleged in the complaint." (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397, 285 Cal.Rptr. 757.)

2. Whether Primary Assumption of Risk Applies is a Question of Law

According to Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, there are two types of assumption of risk: primary and secondary. Primary assumption of risk occurs when, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury. Primary assumption of risk operates as a complete bar to the plaintiff's recovery. Secondary assumption of risk occurs when the defendant owes a duty of care to the plaintiff but the plaintiff knowingly encounters the risk of injury caused by defendant's breach of that duty. Secondary assumption of risk is merged into the comparative fault scheme, and the trier of fact may apportion the loss in relation to the responsibility of the parties. (Id. at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Whether the defendant owed a duty of care to protect plaintiff from the risk that resulted in the injury turns on the nature of the activity in which the defendant was engaged and the relationship of the parties to the activity. (Knight v. Jewett, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The existence and scope of a defendant's duty of care is a legal question for the court to determine. (Id. at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus, determinations regarding the elements on which the existence of the duty depends also present questions of law. When the injury occurs in a sports setting the court must decide whether the nature of the sport and the defendant's relationship to the sport--as coparticipant, coach, premises owner or spectator--support the legal conclusion of duty.

3. Primary Assumption of Risk Does Not Bar an Ordinary Negligence Claim on the Facts Alleged Here

"As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person." (Knight v. Jewett, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport. In this respect, the nature of the sport is highly relevant in defining the duty of care owed by the particular defendant. (Ibid.)

Generally, defendants have no legal duty to eliminate risks inherent in the sport itself Under Knight, whether Neal owed a duty of care to Yancey does not depend on Yancey's subjective knowledge or appreciation of the potential risk of being hit by a carelessly thrown discus. Rather it turns on whether Neal had a legal duty to avoid such conduct or to protect Yancey against that particular risk of harm. (Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

                but they have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.  (Knight v. Jewett, supra, 3 Cal.4th at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   In some activities, the careless conduct of others is treated as an inherent risk of the sport, thus barring recovery by the plaintiff.  For example, a baseball player may not recover if he or she is injured by a negligently thrown ball, and a basketball player may not recover for an injury caused by a negligently extended elbow.  (Id. at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)
                

A. Neal's Relationship to the Sport

The scope of Neal's duty of care to Yancey depends first on Neal's role in, or relationship to, the activity. (Knight v. Jewett, supra, 3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The Knight court examined a number of cases involving sports-related injuries and noted that the duties of coparticipants were not necessarily the same as for other persons such as instructors, coaches, premises owners and business operators. (Id. at pp. 317-318, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In this case, both Yancey and Neal were participants in the activity at issue. Thus, we must determine whether one person participating in discus owes a duty of care to a coparticipant.

B. Nature of the Sport

In the heat of sports like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. Thus, public policy considerations militate against a duty of care in such sports.

"[V]igorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct.... [E]ven when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Knight v. Jewett, supra, 3 Cal.4th at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696, emphasis in original.)

Therefore, a participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The Knight court applied its limited duty holding to a touch football game and suggested its application to a wide variety of other active sports, ranging from baseball to ice hockey and skating. But it left open the question whether a comparable limited duty of care should be applied to other "less active" sports, such as archery and golf. (Id. at p. 320, fn. 7, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In the companion case, Ford v. Gouin, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, the court applied the limited duty of care to the noncompetitive "cooperative" sport of water-skiing. The court reasoned, even when the water-skier is not involved in competition, the skier has undertaken "vigorous, athletic activity," and the ski boat driver operates the boat in a manner consistent with the excitement and challenge of the active conduct of the sport. Imposition of legal liability on a ski boat driver for ordinary negligence in making too sharp a turn or in pulling the skier too rapidly or too slowly would have the same kind of undesirable chilling effect on the driver's conduct as well as a generally deleterious effect on the nature of the sport of water-skiing as a whole....