In 1992, the doctrine of primary assumption of risk was enunciated by a conservative California Supreme Court in Knight v. Jewett (1992) 3 Cal. 4th 296. The decision outlawed claims for injuries caused by the negligence of a co-participant in causal, recreational athletic games. In Knight, there was no liability for aggressive play in a rowdy amateur contest of touch football.
The concept originally provided that consenting adults in a casual game could not sue one another when rough play resulted in an injury. That was a good idea in the case of touch football, but the concept over 10 years repeatedly has been injected with judicial steroids and today has developed into a legal pitbull that needs to be destroyed. Sadly this well-intended concept has been expanded beyond its original intent and has been corrupted to insulate coaches, certified instructors, expert trainers and paid sports professionals from liability when they cause serious injury or death.
Tragically injured recreational sports participants, and their parents, who have relied on expert instruction and professional coaching are cruelly denied their Constitutional day in court because of appellate court decisions written over the past decade by right-wing jurists intent on denying victims their day in court. These mean-spirited opinions, as will be seen below, largely have been authored by judicial appointees of Governors Deukmejian and Wilson who disdain anyone who has been injured and value insurance companies over people.
These decisions proclaim public policies that show contempt for safety training and accident prevention, which is why this particular judge-created body of law needs to be returned to its original limited purpose. Either the Supreme Court or the Legislature should order that the rule of Knight v. Jewett shall only apply in cases of voluntary, casual and recreational amateur sporting activity where people unavoidably are injured from time to time.
In Knight v. Jewett the plaintiff’s finger was amputated after another player accidentally stepped on it. 3 Cal. 4th at 300-301. The Supreme Court held there was no liability, because the other player owed the plaintiff no duty of care not to injure her; the court characterized this recreational sport activity as one of “primary assumption of the risk.” Id., at 321.
A duty to use due care is one of the elements of every negligence cause of action; if there is no duty, there is no liability. Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal. App. 4th 746, 751. “Primary assumption of risk” created by the California Supreme Court prevents a claim of negligence from being heard by a jury because, when there is no duty of care, there is no case.
The Knight court explained the rationale for “primary assumption of risk” as an exception to the duty of ordinary care, as follows: “in active sports, rules internal to the game are commonly broken and “ordinary careless conduct” is a normal experience.” Id., at 318.
The original concept was that in a competitive sporting event to hold another player liable for recreational play would chill participation and alter the fundamental nature of amateur sports. So in cases where the injured plaintiff voluntarily participated in a recreational event with peers, as a matter of law he or she was found to have assumed the risk of injury, including aggressive conduct and rules violations which are inherent in casual sporting activities, such as a robust game of touch football.
That is where the rule should start and stop.
Unfortunately, since the creation of this judicial rule the reasoning set forth in Knight has been expanded well outside its original bounds by California courts to prevent claims against experienced instructors, coaches, trainers and other quasi-professionals, who have superior knowledge, skill, and foresight and, in many cases, hold themselves out as experts or are paid professionals engaged in a commercial activity for profit.
The following summaries of tragic appellate court decisions illustrate the expansion of the simple concept of no-duty in a purely amateur sport setting to an all-encompassing roadblock for negligence claims that otherwise should be heard by a jury.
Kane v. National Ski Patrol System, Inc. (2001) 88 Cal. App. 4th 204, 209-214 held there was no liability for a ski instructor whose faulty assessment of the ability and stamina of volunteer ski patrol trainees to traverse a commercial ski resort’s most difficult, ungroomed trail resulted in their fall into a canyon causing serious injury and a death. A ski patrol instructor benefits a ski resort by providing safety supervision on the slopes and one who is employed or authorized to fill that position by a resort operator must have special certification, superior judgment, skill and knowledge of the terrain. One cannot be, at the same time, a respected professional and a know-nothing protected from liability when his decision results in a death. Justices Benke, Kremer and Huffman of the Fourth Appellate District [San Diego] are responsible for this travesty.
In Allan v. Snow Summit, Inc. (1996) 51 Cal. App. 4th 1358, 1369 a ski instructor was granted summary judgment and the question of his negligence never went to trial, even though he encouraged a novice skier to leave a beginner’s slope and go to the top of the mountain at a commercial ski resort, where the novice fell and suffered herniated discs as a result of icy and steep conditions. Justices Ward, Hellenhorst, and McKinster of the Fourth Appellate District are the sources of this errant public policy choice that should have been heard by a jury.
In Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal. App. 4th 525, 532 a martial arts instructor, who should have known better, increased the speed of a maneuver causing a student’s leg to be broken. He never had to appear before a jury. The damages action against him was dismissed before the case went to trial. It would be interesting to know what role the Japanese-American Religious & Cultural Center’s program of martial arts instruction played in the Center’s fundraising activities. Justices Stein and Stankman of the First Appellate District [San Francisco] authored this decision. Justice Dossee wisely dissented and would not have granted summary judgment, preferring to let the matter go to trial on comparative fault principles.
In Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal. App. 4th 1112 a high school sophomore cheerleader suffered a serious injury when practicing a dangerous acrobatic routine in which Ms. Aaris was thrown into the air to be caught in a “cradle” formed by other high school cheerleaders. She claimed the school’s coaches provided inadequate safety instruction for such entertainment stunts. The court ridiculed her claim with the following mean and vicious comments: “What goes up, must come down. This includes cheerleaders. Whenever gravity is at play with the human body, the risk of injury is inherent. While an appellate court has the power to change the law, we cannot change the law of gravity.” 64 Cal. App. 4th, at 1114-1115.
Obviously that begs the more serious question. Even though there were questions whether these cheerleaders had been properly instructed, had been required to employ commonly used safety devices, and had first mastered this dangerous gymnastic maneuver while using such safety devices, the court declined to allow a jury to decide whether “more supervision would have reduced the risk of harm.” Id., at 1119. Summary judgment was ordered and the case was dismissed against the school and its coaches.
The court reported it feared that liability for inadequate training “would either chill, or perhaps even kill, high school cheerleading,” returning it to its previous iteration as “a row of docile cheerleaders [who] would say, ‘rah, rah, rah, sis-boom-bah.'” Id., at 1114, 1120.
That conclusion is absurdly illogical on its face and coldly cruel at its core. It is far better for teenagers to be leading cheers standing on the ground than performing ill-advised stunts that can result in serious injury. When the entertainment value of high school cheerleading is balanced against the utility of cheerleading, aggressive gymnastics and the risk of serious and lifetime injuries should only be allowed under the strictest supervision, training and safe practices. This shameful decision by Justices Yegan, Gilbert and Coffee of the Second Appellate District [Los Angeles] ignores the legal duty of courts, bound by centuries of precedent, to protect children.
The rationale, which immunized these defendants from being required to answer charges before a jury, was the imposition of liability would chill participation in a game of touch football or similar amateur sports activities. Yet, it defies logic to say that requiring paid coaches and instructors to provide rudimentary safety and skill training before undertaking a dangerous maneuver is likely to chill sports participation. The opposite is the case.
As these cases show, professional coaches and experienced instructors in dangerous recreational activities do not have to answer before a jury whether the resulting injury was foreseeable and preventable.
In California, it is acceptable to send beginners to the top of the mountain and to throw high school sophomores into the air risking serious injuries, without requiring experienced coaches to answer at trial why they failed to provide appropriate training, equipment and instruction.
“To instruct is to challenge” and the challenge will not always be met. But it is not a license to ignore common sense and to sanction maiming and death.
Whenever it is foreseeable that someone “might” be injured, California law requires a prudent person to take all reasonable precautions to prevent an injury from occurring. The failure to do so is negligence. Experienced instructors and paid coaches should not be exonerated from this duty.
It is reasonable to require someone who is held out as a specialist, instructor or expert coach to whom families entrust their children to exercise the degree of skill, knowledge and safety common for persons with such expertise. Anyone hired as a coach to train others should not be placed in a position of authority unless s/he has appropriate training, experience and common sense. When anyone accepts instruction in a particular activity, they should be able to rely on the instructor to know better, to protect against catastrophic harm, preventable risks and challenges beyond the ability of the student, and to provide full and appropriate safety training.
A student may not be able to meet the challenges posed by an instructor and suffer injury. But that should only occur after being given all appropriate instruction, necessary supervision and safety training.
The question is too important to be insulated from being heard by a jury. When experienced instructors, trainers, coaches and paid professionals are charged with causing an injury; the doctrine of primary assumption of risk should not apply unless a full adversarial record conclusively shows that there is no question of fact to be decided by a jury.
In Lupash v. City of Seal Beach (1999) 75 Cal. App. 4th 1428, 1440 the defendant city claimed the absolute defense of primary assumption of risk. The plaintiff claimed that even though he was emotionally upset he was encouraged to participate in an event in which he became a quadriplegic. After hearing live testimony the court concluded that the 13 year old plaintiff had been properly instructed in how to make a “dolphin style” shallow dive to protect his neck from injury, several witnesses observed the 13 year old make an inappropriate deep dive into shallow water, heard the plaintiff’s evidence that he had stepped into a hole and the details of his being encouraged by his coach to continue competing despite his spent emotional state. In this case, the court safely granted the city a non-suit based on a complete record. Lupash had his day in court and the opinion demonstrates there was little doubt of what occurred, unlike other cases where the evidentiary record is sparse.
The hazard of a partial record was explained well by Judge O’Farrell in his dissent to the decision of the Sixth Appellate District [San Jose] in Kahn v. East Side Union High School District (2002) 2002 Cal. App. Lexis 2204. Kahn, a 14 year old high school freshman swimmer, was fearful of diving into the shallow portion of a pool, had not received any previous instructions on how to dive in competition and had been allowed to swim the first leg in relay races where she could start in the pool and did not have to dive.
On the day Kahn broke her neck she was told by her high school coach, during the swim meet, that she could not start the relay race. Instead she would have to swim the third relay which required diving from a racing block into shallow waters for the first time in her life.
The coach’s decision put the young freshman “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 that 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 race scheduled to start in minutes the plaintiff took it upon herself to practice the racing dive with assistance from two fellow swimmers. Her coach did not assist and later claimed he had no idea she was practicing. Obviously he expected her to make the diving start without any practice, training or instruction. Kahn completed two practice dives, but on the third dive off the racing block she broke her neck.
Justices Wunderlich and Manoukian affirmed the granting of summary judgment and dismissal of the case and in response to the claim that the student lacked the necessary skills and had not received appropriate training, they show a mean-heartedness that merits rebuke and censure.
All parents place their trust in high school coaches to teach safe practices and to never push students beyond their skill level and experience without appropriate training. Unfortunately, these judges disagree:
(C)oaches who merely challenge their students to improve their skills should not be subject to tort liability. We see no reason in policy or law to apply a harsher rule to coaches who issue such challenges after previously assuring their students that they would not be encouraged or required to learn new skills. More to the point, plaintiff was not forced to accept her coach’s challenges; she could have refused to swim. By voluntarily rising to the challenge of attempting an unfamiliar dive, plaintiff assumed the risk that she would be unable to meet that challenge. Citations omitted. It bears noting that neither the coach’s challenge nor his broken promise caused plaintiff’s injury, nor did either act increase the inherent risk of the harm plaintiff faced. * * * In our view, plaintiff’s argument that more training, practice or supervision would have prevented the injury is speculative.” [Emphasis added.]
Fourteen year-olds do not have the legal capacity to agree to anything. They cannot enter into a binding contract, consent to surgery, open a checking account, buy a car or vote. How a legally incompetent person simultaneously has the legal capacity to assume the risk of a life-threatening risk of permanent injury or death is not explained.
To say that it is “speculative” whether training or practice could have prevented this injury makes no sense. If that was true then there is no reason for teenage drivers to attend driving school. If it is speculative that providing teenage drivers with training and practice is a waste of time, just give them the keys. Why have driving instructors or swim coaches in the first place?
This decision sets guidelines that are bad public policy. It abdicates supervision of coaches, exonerates them from injuries caused by their negligence, sanctions misjudgment, absolves the failure to mandate accident prevention training and condemns, without trial, children injured by negligent coaching.
Tragically, no one will ever know if Andrew McKay, a paid high school coach, was in fact negligent and whether reasonable coaches would order a novice high school swimmer, during a swim meet, to dive off of starting blocks for the first time in her life into a shallow pool without previous safety training.
Young Kahn was denied a jury trial with full testimony, and unlike Lupash, the record is far from complete. We will never know all the facts in this case, although Judge O’Farrell makes it clear in his dissent that
the record supports a finding that plaintiff was given specific directions that increased the risk of harm when she was told she had to perform the dive. I believe one increases the risk of harm over that inherent in a sport when an authority figure, such as a coach, pushes a young person to engage in a dangerous maneuver without first providing basic instruction. [Emphasis added.]
Judge O’Farrell found there was a factual dispute “as to whether plaintiff was given any instruction on how to safely execute a shallow water dive.”
Worse, in this case the teenager was panicked by the coach’s order to do something she feared in the midst of a competition, which she had never practiced before.
Only a very mean, or very stupid, person would push a beginner to this extreme in the charged atmosphere of competition, which many teenage athletes take too seriously. Obviously these judges have never experienced the anxiety that routinely accompany athletic contests or they have conveniently forgotten any such memory.
Clearly, being an appellate judge, high on the legal food chain, has inured these jurists to the potential abuse of power in the coach-high school student relationship. The power of authority figures is well understood in the field of sex harassment and is the legal basis for holding sexually abusive superiors accountable. Across the board, women, having routinely suffered this experience, are well aware of it. That Justice Patricia Manoukian would not modify her joinder in this decision after her pre-issuance reading of the dissent, or take the time to comment upon it, is unfortunate.
The student had been promised that she would not be required to dive. To break the promise in the middle of a meet and demand that the 14 year old perform a dive she had never been taught to do not only demands this issue be heard by a jury, but demands the sternest rebuke of this coach for violating the trust placed in him by his employer, supervisors, students and the parents of his charges. “In loco parentis,” the longstanding rule authorizing school administrators to take charge of school children, meant little to Mr. McKay and nothing to this court.
Nobody in the world would want their son, daughter or grandchild treated in this manner by this coach or any coach, except perhaps Justices Wunderlich and Manoukian.
Wunderlich and Manoukian not only have given their approval to the misconduct in this particular case, but as sitting appellate judges they have authorized a perverted public policy that as a matter of law immunizes paid coaches, i.e. professionals, when they refuse to give a novice basic safety and skill training before undertaking a dangerous maneuver for the first time in the midst of a competitive meet. This opinion was most certainty greeted with glee by insurance companies, but no one else.
Justice O’Farrell, in his dissent, not only holds that the question of the coach’s negligence should go to trial, but his understanding of the relationship between a high school freshman and her coach demonstrates human compassion clearly absent in the harsh reasoning of the majority.
It is because of thoughtful dissents, such as these by Justice Dossee and Judge O’Farrell, that the rule in Knight must be strictly limited to the setting from which it came: amateur touch football contests and similar informal games where individuals voluntarily compete against peers in a casual setting.
Those who are paid for coaching, hold themselves out as “experts” or “professionals,” or are certified by a recognized standards organization should stand trial when they fail to meet common sense standards of care that cause injury.
It is shameful in a civilized society to dismiss without trial negligence claims against a ski patrol instructor who sends a trainee to his death, a swim coach who orders an untrained freshman swimmer to dive into a shallow pool and break her neck, a high school cheerleading coach that cause serious injuries by not providing safety training and a martial arts trainer who is responsible for breaking a child’s leg. In each of these cases, a jury should decide if injuries were caused by a failure to properly train and supervise.
If you or a family member have been wrongfully injured call us at 1.888.777.1776 or use this form, delays can hurt your case, so please don’t hesitate to contact us.