Arnzen v. Temecula Valley Unified School Dist. CA4
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Appellant,
TEMECULA VALLEY UNIFIED SCHOOL DISTRICT et al.,
Defendants and Respondents.
O P I N I O N
APPEAL from the Superior Court of Riverside County. Raquel A. Marquez, Judge. Reversed.
Williams Iagmin and Jon R. Williams for Plaintiff and Appellant.
Carpenter, Rothans & Dumont, Justin Reade Sarno and Louis R. Dumont for Defendants and Respondents.
At Temecula Valley High School’s (TVHS) homecoming football game on September 28, 2012, plaintiff and appellant, Heather Arnzen, a senior and experienced varsity cheerleader at TVHS, fell and suffered a head injury while serving as a “base” for a stunt called the “liberty extension.” The stunt was performed, without safety mats, on the dirt track next to the football field, and Arnzen’s head hit the dirt track when she fell. The dirt track had been sprayed with water before the game but was dry after halftime when the stunt was performed and Arnzen fell.
Arnzen sued defendants and respondents, Temecula Valley Unified School District (the District), and her cheer coach, Revan Jebrail, a District employee (collectively, defendants), for her injuries. Arnzen alleged causes of action against each defendant for negligence and premises liability.
In her negligence claim, Arnzen alleged defendants increased the risk of injury inherent in performing the stunt by, among other things, directing the cheerleaders to perform the stunt on the “slick dirt track” and without safety mats. In her premises liability claim, Arnzen alleged the watering of the dirt track to prevent excessive dust during the homecoming activities created a dangerous condition which posed an unreasonable risk of harm to Arnzen and the other cheerleaders.
Defendants moved for summary judgment or, alternatively, summary adjudication of each cause of action. The trial court summarily adjudicated each cause of action in favor of defendants and entered judgment in favor of defendants. In this appeal, Arnzen only challenges the summary adjudication of her negligence claim, not her premises liability claim. The trial court concluded that the negligence claim was barred by the doctrine of primary assumption of the risk.
Arnzen claims defendants did not meet their initial burden of showing that the doctrine of primary assumption of the risk barred her negligence claim. She argues it was defendants’ burden to show that “Jebrail’s directive” to Arnzen and the other cheerleaders “to perform complicated acrobatic stunts on the slippery and hard track surface, without mats or other safety precautions” did not increase the risk of injury inherent in performing the liberty extension stunt. She further argues that, even if defendants met their initial burden, she raised triable issues sufficient to preclude summary judgment, and the court erroneously excluded critical evidence submitted in opposition to the motion, including evidence that Jebrail violated TVHS’s policy, adopted during the previous year, of requiring the stunt to be performed on safety mats.
We conclude that the judgment must be reversed.
II. FACTUAL BACKGROUND
A. Defendants’ Evidence
1. Arnzen Was Injured While Performing the Liberty Extension Stunt
At TVHS’s homecoming football game on September 28, 2012, Arnzen fell and suffered a head injury while serving as a base cheerleader for the liberty extension stunt. The stunt was performed on the dirt track next to the football field, without safety mats, and Arnzen’s head hit the dirt track when she fell. Before the game began at 7:00 p.m., the dirt track was sprayed with water to reduce dust, but the dirt track was dry by the time halftime ended. At the hearing on defendants’ motion, the parties stipulated that the stunt was performed after halftime.
The stunt involved three female cheerleaders, including Arnzen, serving as “bases” for the stunt. The bases stood on their feet while lifting another female cheerleader, “the flyer,” so that the flyer stood at “full extension,” or at arms’ length, above the heads of the bases. All of the bases were to catch the flyer if the flyer fell, and were not to allow the flyer to hit the ground.
Arnzen served as the “back spot” base for the stunt and stood behind the flyer. As the back spot, Arnzen was to step back and catch the flyer if the flyer fell. The other two bases, the “main” and “secondary” bases, stood to the left and right of the flyer. The main base held most of the flyer’s weight. The bases first lifted the flyer aloft for two seconds, then brought the flyer down to “shoulder level,” then lifted the flyer a second time.
The flyer for the stunt, Kelsey LeClair, recalled that as she was lifted the first time Arnzen’s hands were on her ankles. On the second lift, Kelsey was to stand on her right foot, lift her left leg in a bent position, place her left foot on her right knee, and extend her arms over her head into a “V.” On the second lift, Kelsey raised her left leg, and at that point Arnzen placed her hands on Kelsey’s right leg and ankle. Kelsey did not recall getting “up into the liberty” on the second lift. Kelsey was not looking down; she was looking above the crowd, and she recalled falling backwards and to her left. Her left hip hit the ground, and half of her body was on Arnzen. Most of Kelsey’s weight was on the ground, and not on Arnzen, when Kelsey fell.
Before the incident, Kelsey had performed the liberty extension stunt “[e]asily a hundred times,” and Arnzen had performed the stunt “countless times.” The stunt was “always in the routine for football” games. Before the homecoming game, the cheerleaders were warming up on the football field and practiced performing the liberty extension stunt.
At her deposition in July 2014, Arnzen did not recall how she fell. She recalled seeing the flyer (Kelsey) “up there and holding on to her leg,” supporting her. She also recalled having “the feeling of falling” and thinking, “‘What’s happening?’” Arnzen did not recall being on the ground or getting up off the ground that night. Her first memory was of “being surrounded by people, sitting, [and] holding an ice pack” to the “back left part” of her head. She next recalled waking up in a hospital.
After Jebrail arrived at the game and before Arnzen fell, Noelle (Arnzen’s mother) asked Jebrail whether the cheerleaders would be using mats that night, and Jebrail answered “‘no.’” Noelle did not recall discussing the use of mats “with anyone” other than Jebrail at any time before Arnzen fell at the game. Noelle saw Arnzen “hit the ground,” but did not see Arnzen fall. Arnzen was lying on her back after she fell. Noelle transported Arnzen to Loma Linda University Medical Center in Murrieta, where Arnzen spent the night. Arnzen insisted on attending the homecoming dance on Saturday, September 29, so Noelle checked her out of the hospital that day, against medical advice.
2. Arnzen’s Prior Cheer Injuries
At the time of the incident, Arnzen was a senior at TVHS. During her freshman year at TVHS, Arnzen suffered a “minor concussion” when her head hit the “basketball floor” in the school gymnasium while Arzen was serving as a back spot for a stunt. According to Arnzen, the flyer fell when the bases “weren’t paying attention very well.” Arnzen was the only base who caught the flyer, and the flyer knocked Arnzen to the floor, causing her concussion. No mats were used during that stunt.
During her junior year at TVHS, Arnzen suffered a broken nose during a stunt when the flyer’s elbow hit Arnzen’s nose. On another occasion before September 2012, Arnzen fell and twisted her ankle while serving as a flyer. On still another occasion, while Arnzen was practicing with the TVHS cheer team at a “cheer camp” before the 2012-2013 school year began, Arnzen was hit in her head by a flyer when the flyer came down from the stunt too quickly.
3. Arnzen’s Prior Cheer Experience
Arnzen was a cheerleader during each of the four years she attended TVHS and was a varsity cheerleader during her junior and senior years. Prior to her senior year, she was chosen as a “captain” for the varsity cheerleading team. As a captain, Arnzen had a leadership role, worked with fellow captains, and was “partially in charge” of the team. The captains would also help Jebrail run cheer practices and cheer camps. Spring and summer cheer practices took place on the TVHS football field. Cheer camps took place at the “Intensity” gymnasium in Murrieta.
Beginning in her sophomore year, Arnzen also participated in “competition cheer” through a private group called “All Star Cheer” at the Intensity gym. During her senior year, Arnzen would have been a “level 4” cheerleader at All Star Cheer had she continued with All Star Cheer.
During her junior year, Arnzen participated in “Pom,” a competitive combination of dance and cheer without stunting or tumbling. Arnzen began participating in cheer with “Temecula Valley Pop Warner” when she was in fourth grade and stopped when she was in eighth grade, but she did not participate each year between fourth and eighth grades. Arnzen practiced stunting at Temecula Valley Pop Warner and attended cheer camps there during the summer.
4. Arnzen’s Risk Acknowledgement Form (February 2012)
On February 24, 2012, Arnzen and her mother signed a form document titled “Warning to Athletes & Parent/Guardians.” At the top of the form in capital letters, the form stated: “Serious, Catastrophic and Perhaps Fatal Injury May Result From Athletic Participation.” The word “Cheer” was handwritten on the form next to a blank space for “sport.”
The form stated: “[N]o amount of instruction, precaution, and supervision will totally eliminate all risk of serious, catastrophic, or even fatal injury. If any of the foregoing is not completely understood, please contact your school Athletic Director for further information.” By signing the form, Arnzen and her mother expressly acknowledged that they “underst[oo]d and ha[d] read the material contained in the warning” form. (Capitalization and underlining omitted.)
These materials included a “Concussion Information Sheet 1,” which stated that “[a] concussion is a brain injury and all brain injuries are serious.” The sheet also listed signs and symptoms of concussions.
5. Jebrail’s Coaching Experience, Role at TVHS, and Use of Safety Mats
By the time of the 2012 TVHS homecoming game, Jebrail had been the varsity cheerleading coach at TVHS since 2008. Jebrail was involved in cheer when he was in high school and had extensive experience coaching cheer. He coached Arnzen during her junior and senior years at TVHS, when Arnzen was a varsity cheerleader.
At the 2012 homecoming game, Jebrail did not see Arnzen fall because he was watching another group of cheerleaders when Arnzen fell. At his deposition in February 2015, Jebrail had not spoken to anyone who told him they had seen Arnzen fall, including any of the cheerleaders who performed the liberty extension stunt with Arnzen.
Jebrail recalled that, before Arnzen fell, either Arnzen’s mother Noelle or other cheerleaders told him the dirt track was damp and asked him whether he wanted “to pull the mat out.” Jebrail said “no” because the dirt track was damp but not wet. In Jebrail’s opinion, the liberty extension stunt was “absolutely” “a rudimentary” stunt for the TVHS varsity cheerleading team to perform.
During Jebrail’s entire cheer coaching tenure at TVHS, the cheerleaders practiced and performed stunts on TVHS’s wood gymnasium floor and on the dirt track—without safety mats. At the beginning of the 2011-2012 school year, the year before the September 2012 homecoming game, Jebrail’s direct supervisor, TVHS’s activities director, Jennifer Nolte Burlingame, told Jebrail he had to use mats on the dirt track at football games “under at least some circumstances,” which Jebrail believed was limited to “tosses and . . . tumbling.”
6. The American Association of Cheerleading Coaches and Administrators (AACCA) Rules Concerning the Use of Safety Mats
As TVHS’s activities director, Burlingame was “responsible for handling the cheerleading teams” at TVHS. In managing its cheerleading program, TVHS would “look for guidance” from the AACCA, an educational body that provides and serves as a source of cheerleading education and safety.
Burlingame pointed to section H of the “2012-13 AACCA School Cheer Safety Rules,” titled “Specific Surface Restrictions,” which states the following:
“The following skills are only allowed on a mat, grass or rubberized track surface. [¶] 1. Basket tosses, elevator/sponge tosses and other similar multi-based tosses. [¶] 2. Partner stunts in which the base uses only one arm to support the top person. [¶] 3. Twisting tumbling skills (Arabians, full twisting layouts, etc.). The exception to this rule is the following: [¶] a. Cartwheels, roundoffs and aerial cartwheels are allowed on surfaces other than a mat, grass or rubberized track.” (Italics added.)
B. Arnzen’s Evidence
The trial court sustained many of defendants’ numerous evidentiary objections to Arnzen’s evidence adduced in her opposition to defendants’ motion. Here, however, we describe Arnzen’s evidence without excluding the inadmissible portions. As will appear, much of Arnzen’s evidence constituted inadmissible hearsay and statements lacking in sufficient evidentiary foundation. But as we also explain, Arnzen presented sufficient admissible evidence to raise two critical triable issues of material fact: (1) whether TVHS had a policy, adopted during the prior, 2011-2012 season, of requiring all stunts to be performed on safety mats, and (2) whether Jebrail breached this TVHS policy by directing Arnzen and the other cheerleaders to perform the stunt at the 2012 homecoming game without safety mats.
1. The Evidence That Arnzen’s Foot or Feet Slipped, Causing Her Injury
Arnzen claims the dirt track was slippery, and the slipperiness of the dirt track caused “her feet to go out from under her and her head to fall straight back and strike the hard ground causing her injury.” But Arnzen presented no competent evidence that one or both of her feet slipped or that the slipping of her feet caused her to fall. Noelle testified that, shortly after Arnzen fell, Jebrail pointed out to Noelle “that [Arnzen’s] foot slipped” and showed Noelle “the skid mark” “on the dirt” “that was left” when Arzen’s foot slipped. But Jebrail’s statement to Noelle was correctly excluded as lacking sufficient foundation, specifically, a showing that Jebrail personally knew the skid mark was made by Arnzen’s foot. (Evid. Code, § 403, subd. (a)(2).)
Kelsey testified “[e]verybody in class” told her they saw that Arnzen “went down first” during the failed liberty extension stunt. These statements to Kelsey were correctly excluded as inadmissible hearsay. (Evid. Code, § 1200.) Kelsey also said: “I can’t tell you if she [fell] or not. Again, I can’t look at the ground.” It was undisputed that Arnzen fell, but Arnzen submitted no competent, admissible evidence concerning how she fell—that is, whether she fell because her foot slipped or because she was knocked down by another cheerleader.
Tracy Campbell submitted a declaration stating she was in the stands watching the game when her “step-daughter Jocelyn” “grabbed” her “shoulder and excitedly exclaimed: “‘Oh my God, did you see that? Heather’s feet just went out from under her and she fell back and hit her head hard on the ground.’” Although Jocelyn’s statement to Campbell was hearsay (Evid. Code, § 1200), it was admissible under the hearsay exception for spontaneous statements or excited utterances (Evid. Code, § 1240; People v. Poggi (1988) 45 Cal.3d 306, 318). Jocelyn’s statements to Campbell competently indicated that Arnzen fell and was injured because her feet slipped “out from under her.”
2. The Evidence That TVHS Had a Safety Mats Policy
In opposition to defendants’ motion, Arnzen presented admissible evidence TVHS had a policy of requiring “all stunting and tumbling” to be performed on safety mats at the time of the 2012 homecoming game. Arnzen adduced a declaration from Shelly Barres, who had been a cheerleading and dance coach for over 15 years and who was “the varsity song” cheerleading coach at TVHS” beginning “in or around November 2008” through “the end of the 2011 season.” Barres, however, “did not coach the girls who performed stunts.”
Shortly after she became a cheerleading coach at TVHS, Barres “became concerned” about the safety of TVHS cheerleaders, “especially” those who performed stunts. Barres expressed her concerns to “several people at TVHS” while she was a coach there, including Jebrail. Barres opined that “TVHS did not follow the safety rules of the AACCA,” but Barres did not identify which safety rules TVHS did not follow. Barres averred that when she returned to the TVHS campus “for the 2011 season,” the year before Arnzen fell and was injured, Burlingame informed Barres that “safety mats were now required for all stunts . . . .” It was Barres’s “belief at the time that the school had decided to adopt the AACCA guidelines” that Barres had previously delivered to the TVHS principal.
Barres also opined that the dirt track was not “a safe environment for stunting or tumbling,” and that safety mats were needed to perform stunts at football games, “because the dirt track was a very slippery surface due to the top layer of loose gravel and dirt.” In addition, Barres observed that the track was “hard like concrete below the slippery layer of gravel.”
Rishann Clermont, a mother of one of the varsity cheerleaders during the 2011-2012 season, was “active with the TVHS Varsity Cheerleading Team in 2011-2012 and served as a ‘team mom’ during that season.” Clermont averred that, “[i]n or around September 2011,” Jebrail told her TVHS “now had a policy that would require” the varsity cheerleading team “to use a cheer mat down on the dirt track around the football field in order for our girls to be able to stunt and tumble during the games.” Clermont authenticated a copy of an e-mail she sent to other TVHS varsity cheer parents around September 21, 2011, advising the parents of the safety mats policy and asking whether any of them had a pickup truck to transport the mats to an upcoming game in Lake Elsinore.
Brooke Durnil, formerly Brooke Jones, was a varsity cheerleader during the 2012-2013 season along with Arnzen and a junior varsity cheerleader the prior year. According to Durnil, during 2011-2012, TVHS “had a policy that required us to use mats for all cheerleading stunts and tumbling, including liberty extension stunts and basket tosses. Based on that policy, we used mats for all stunts performed on the dirt track at junior varsity football games.”
At the 2012 homecoming game, Durnil did not expect that she and the other varsity cheerleaders would have to perform stunts because they were wearing halos, their hair was down, and the other experienced varsity cheerleaders said that the team did not perform stunts at homecoming. When Jebrail arrived at the game, Durnil “heard the captains of the cheerleading team ask Coach Jebrail to confirm that our team would not be doing stunts . . . . The captains also told him that our shoes were wet and slippery from warming up on the wet grass. Coach Jebrail responded that we were going to have to do stunts.” Next, the captains told Jebrail they “needed to get out the mats for stunting. In response, Coach Jebrail said that we would not be using mats.” During the game, Jebrail required the varsity cheer team to perform stunts on the dirt track, without mats, “including extensions and basket tosses.”
In his deposition, Jebrail stated that in the fall of 2012 he discussed the use of mats with Burlingame, including “the fact that the girls hate[d the mats],” “[the girls] get dirty moving the mats back and forth, and that irritated the whole program because we can’t find people that would just help us bring down the mats from the storage.” Jebrail had observed “small rocks and gravel on the surface of the dirt track.” He described that as “just an inconvenience” for the girls, who would have to wash their hands after they touched the dirt track while tumbling.
Jebrail confirmed that when he was a coach he “made [the] decisions” about the use of mats, and he expected the cheerleaders to respect his decisions. Jebrail knew the dirt track had been watered down before the 2012 homecoming game, but to his knowledge the track had never been watered down before. Burlingame told Jebrail it was “fine” not to use mats during the 2012 homecoming game when he spoke with her about it, because the cheerleaders were “not doing anything . . . complicated.”
Burlingame confirmed that safety mats were available for the cheerleaders at the 2012 homecoming game. The mats were in a storage container 100 to 200 yards from the football field. Burlingame recalled Jebrail telling her that the cheerleaders did not like to use the mats because they were “heavy and dirty.” Burlingame also recalled that the cheerleaders “very clearly expressed that they did not like the mats.” Burlingame had no training “related specifically to cheer safety,” but she believed the girls had to use the mats for tumbling.
Durnil stated in her declaration that the dirt track “was a slippery surface, with a top layer of loose gravel and dirt. The [cheerleaders] had complained to Coach Jebrail that the track was slippery because of the loose gravel and that the gravel would get stuck in [their] hands when tumbling, making their hands hurt.” Arnzen’s mother Noelle averred that, in September 2012, the shoes provided by TVHS and Jebrail for the varsity cheer team “had a smoother bottom and less traction” than shoes the cheerleaders had worn in earlier years, and “[t]he cheerleaders complained that the shoes were slippery on the [dirt] track.”
3. Whether the Failure to Use Mats Violated Any Applicable Safety Standards
Arnzen claimed, through an expert declaration of Kim Archie, that requiring the girls to perform the liberty extension stunt on the dirt track, without safety mats, “violated applicable rules of the AACCA, the NFHS (National Federation of State High School Associations),” TVHS school policy, and “the rules of the USA Gymnastics (‘USAG’), the American governing body for acrobatic maneuvers such as the Liberty Extension.” Archie had 25 years of experience in “cheerleading, gymnastics” and “sport coaching safety.”
Archie opined that “[m]is-classifying acrobatic maneuvers by high school students as ‘cheer’ rather than ‘gymnastics’ prevents appropriate risk management protocols to be followed, and creates a reasonably foreseeable risk of the type of injury” Arnzen sustained. Archie further opined that the liberty extension stunt was “an advanced” “acrobatic sequence” and “advanced ‘stunt’” in high school cheerleading, not a “‘beginner’ stunt.” Based on the evidence submitted on the motion, Archie claimed that TVHS had a policy of requiring “[g]ymnastic mats” for “acrobatics and tumbling at games,” and that “[i]n 2012 Coach Jebrail decide[d] to end the safety policy of mats at football games.”
Archie also claimed the “USA Gymnastics code of points requires at least a 1 3/4” mat (2 ¼” finished mat height) for acrobatics” and “[t]he cheer community understands and acknowledges that cheerleading is a combination of gymnastics, dance and leading cheers . . . .” Archie relied on an “American Academy of Pediatrics article entitled Cheerleading Injuries: Epidemiology and Recommendations for Prevention, at paragraph 5, page 969,” which states: “‘No cheer events should take place on dirt, vinyl floors, concrete or asphalt.’”
Archie also relied on “The National Federation of High School Federation’s Handbook Rule 2 Section 1, ART., 5,” which states that “‘performance areas must be suitable for spirit activities,’” “‘surfaces and areas must be reasonably free from objects and or impediments,’” and “‘stunts and tumbling must be modified to be appropriate for the surface and/or area.’” Archie opined that “[t]he dirt track with loose gravel violated this rule” even if the dirt track was dry by the time the stunt was performed. The “most likely cause” of the stunt failure, according to Archie, “was the surface on which the cheerleaders were made to perform.” Archie averred “[t]he safety literature is replete with the fact that the surface must be appropriate.” (Italics added.) Archie claimed the “damp” dirt track would have caused the bottom of the cheerleaders’ shoes to have less traction, making the dirt track “even more slippery” and “leading to” Arnzen’s fall.
A. Standard of Review on Summary Judgment
“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) Summary judgment is properly granted where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment bears the initial burden of showing that the plaintiff’s causes of action have no merit. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) The defendant meets this initial burden by making a prima facie evidentiary showing that either (1) one or more elements of each cause of action cannot be established or (2) there is a complete defense to each cause of action. (Id. at p. 849; Code Civ. Proc., § 437c, subd. (o)(2).) If defendant makes this showing, the burden shifts to the plaintiff to produce evidence showing there is a triable issue of material fact concerning the element or defense. (Aguilar, supra, at pp. 849-850; Ahn v. Kumho Tire U.S.A., Inc. (2014) 223 Cal.App.4th 133, 136.) The defendant also bears “an overall burden of persuasion” that there is no triable issue of fact and the defendant is entitled to judgment as a matter of law. (Rancho Viejo v. Tres Amigos Viejos (2002) 100 Cal.App.4th 550, 557-558; Aguilar, supra, at p. 850 & fn. 11.)
On appeal, we review an order granting summary judgment de novo, considering all of the evidence adduced on the motion (except evidence the trial court properly excluded) and the uncontradicted inferences the evidence reasonably supports. (Merrill v. Navegar, Inc. (2001) 26 Ca1.4th 465, 476 (Merrill).) “The trial court’s stated reasons for granting summary judgment are not binding on us because we review its ruling, not its rationale.” (Kids' Universe v. In2Labs (2002) 95 Cal.App.4th 870, 878.) “We liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.)
In sum, “‘[o]ur review of the summary judgment motion requires that we apply the same three-step process required of the trial court. [Citation.] “First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent’s pleading. [Citations.] [¶] Secondly, we determine whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in movant’s favor. [Citations.] . . . [¶] . . . [T]he third and final step is to determine whether the opposition
demonstrates the existence of a triable, material factual issue. [Citation.]” [Citation.]’ [Citation.]” (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 848.)
B. Primary Assumption of the Risk Principles, Overview
In any negligence action, the plaintiff must demonstrate “‘“a legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the resulting injury.”’ [Citation.]” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) Whether a legal duty is owed in a particular situation is a question of law for the court and is determined on a case-by case basis. (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) A court’s determination that a duty of care exists “is ultimately ‘“an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.”’ [Citation.]” (Eriksson v. Nunnink, supra, 191 Cal.App.4th at p. 838.)
As a general rule, all persons have a duty to use ordinary care to prevent others from being injured as a result of their conduct. (Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight); see Civ. Code, § 1714.) There are exceptions to this general rule, both statutory and judicially established where “‘clearly supported by public policy.’” (Merrill, supra, 26 Cal.4th at p. 477, citing Rowland v. Christian (1968) 69 Cal.2d 108, 112.) Primary assumption of the risk is a judicially established exception which has frequently been applied in cases involving sports and other athletic or recreational activities. (E.g., Knight, supra, at pp. 308-309 [touch football]; Ford v. Gouin (1992) 3 Cal.4th 339, 345 [waterskiing]; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 [intercollegiate baseball]; Shin v. Ahn (2007) 42 Cal.4th 482, 486, 490-491 [golf].) “Under the primary assumption of risk doctrine, the defendant owes no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence. [Citation.] In a sports context, the doctrine bars liability because the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate.” (Shin v. Ahn, supra, at p. 489, citing Knight, supra, at pp. 308-309, 315-316.)
In Knight, the plaintiff was participating in a touch football game and was injured when the defendant, another participant, knocked the plaintiff down and stepped on her hand while trying to intercept a pass. (Knight, supra, 3 Cal.4th at p. 300.) In affirming summary judgment for the defendant, Knight held that a sports participant owes no duty to protect another participant from “ordinary careless conduct committed during the sport.” (Id. at p. 318.) Rather, a sports participant breaches a duty of care, and is subject to liability to another participant, only if the participant “intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport.” (Ibid.) The defendant’s conduct was “at most, careless or negligent,” and was not “so reckless as to be totally outside the range of the ordinary activity involved in the sport” of touch football. (Id. at pp. 320-321.)
Knight recognized that, as between coparticipants in a sport, vigorous participation often includes accidentally careless behavior, and vigorous participation “likely would be
chilled” if legal liability could be imposed against a participant for “ordinary careless conduct” causing injury to a coparticipant. (Knight, supra, 3 Cal.4th at p. 318.) As a policy matter, imposing liability for such ordinary careless conduct or general negligence “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging” in the sport. (Id. at pp. 318-319.) Knight and its progeny recognize there are two “species” or types of assumption of risk: primary and secondary. (Knight, supra, at pp. 308-309; Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1003; Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 161; Shin v. Ahn, supra, 42 Cal.4th at p. 489.) When primary assumption of the risk applies, no duty of care is owed and the plaintiff’s assumption of the risk inherent in the activity acts as a complete bar to the plaintiff’s action. (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 132.) Secondary assumption of the risk “refers to those instances in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the breach of the duty. [Citation.]” (Ibid.; Knight, supra, at p. 310.) In secondary assumption of the risk cases, “the plaintiff shares the fault for his or her injury, and therefore, the damages must be apportioned between the parties.” (Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1083.) Secondary assumption of the risk “relates to the allocation of damages, not to the question of duty.” (Shin v. Ahn, supra, at p. 498.)
Knight adopted “the duty approach” and rejected “the implied consent approach” to primary and secondary assumption of the risk. (Knight, supra, 3 Cal.4th at p. 316.) Under the duty approach, whether the defendant owed the plaintiff a duty of care does not depend on the plaintiff’s subjective awareness of the risks inherent in the sport, but “turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.” In these contexts, “the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury. [Citation.]” (Id. at pp. 313, 316-317.)
Knight broadly defined the scope of the duty of care owed by a defendant with some role in or relationship to a sport or to a participant in the sport: “Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, supra, 3 Cal.4th at pp. 315-318 [discussing scope of liability of sports facilities owners and operators, such as ballparks and ski resorts].) Knight discussed two examples of what would and would not increase the risks of harm inherent in a sport: “[A]lthough a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.” (Id. at p. 316.)
C. Defendants’ Duty of Care to Arnzen
This case concerns the duty of care owed by a coach or an instructor of a sport to a student-participant in the sport. The duty of an instructor or coach is similar in scope to the duty of an owner or operator of a sports facility: “Instructors, like commercial operators of recreational activities, ‘have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. . . .’” (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 435; Knight, supra, 3 Cal.4th at p. 316.) But like owners and operators of sports facilities, coaches and instructors have no duty to decrease the risks inherent in the sport. (See Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1120 (Aaris); Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 10-14 (Connelly).) “‘An instructor [or coach] is not an insurer of the student’s safety.’” (Aaris, supra, at p. 1117; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 50.)
In their motion, defendants claimed, and the trial court agreed, that Arnzen’s negligence claim was barred by primary assumption of the risk. Defendants and the trial court primarily relied on Aaris.
Aaris involved a high school cheerleader who was injured while serving as a base for a cheerleading or “gymnastic” stunt called the “cradle.” (Aaris, supra, 64 Cal.App.4th at p. 1115.) Similar to the liberty extension stunt, the cradle involved two cheerleaders facing each other to form a base, while they launched a third cheerleader, the flyer, into the air. When the flyer descended, the bases were to catch her. A fourth cheerleader acted as a “spotter” to assist in the catch. While practicing the stunt, the flyer landed on the plaintiff, injuring the plaintiff’s leg or right knee. (Ibid.)
The plaintiff sued the school district for negligence, claiming her coach recklessly increased her risk of injury by requiring her and the other cheerleaders to keep practicing the stunt, even though some of the girls had not mastered the stunt. But there was no evidence that the coach acted recklessly, failed to adequately supervise or train the girls, or “took the team beyond its level of experience and capability.” The girls had practiced the stunt “‘for several months’” before the injury. Based on all of the evidence, Aaris held the plaintiff’s negligence claim was barred by primary assumption of the risk. (Aaris, supra, 64 Cal.App.4th at pp. 1116-1120.)
Arnzen argues Aaris is distinguishable because, unlike this case, it did not involve a coach or instructor who directed a stunt to be performed under unsafe conditions. Like the plaintiff in Aaris, Arnzen relies on three cases involving coaches or instructors and their students, where the student’s negligence claims were not barred by primary assumption of the risk: Tan v. Goddard (1993) 13 Cal.App.4th 1528, Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, and Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746. In these cases, “‘the instructor/coach gave specific directions which increased the risk of harm to the student over and above that inherent in the sport[,]’” but the coach in Aaris gave no such directions. (Aaris, supra, 64 Cal.App.4th at p. 1117, italics added.)
Tan involved a student jockey whose instructor directed him to ride an unsafe, lame horse in reverse direction on a rocky, unsafe track. The student did as instructed and was injured when the horse stepped on an object and went down. (Tan v. Goddard, supra, 13 Cal.App.4th at pp. 1530-1531.) Tan held the student’s negligence claim against the instructor was not barred by primary assumption of the risk. Instead, the instructor “owed Tan a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity.” (Id. at p. 1535.) Tan pointed out that coaches and instructors “owe a duty of due care to persons in their charge” and viewed the case as analogous to the example, cited in Knight, of the duty of a ski resort operator to use due care to maintain its towropes in a safe condition. (Tan v. Goddard, supra, at pp. 1535-1536; Knight, supra, 3 Cal.4th at p. 316.)
Similarly, in Galardi, a riding instructor directed her student to ride a horse over jumps that “were unreasonably and unnecessarily high” and “improperly designed, located and spaced.” (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th at pp. 819-820.) During a practice, the instructor twice raised the heights of the jumps without lengthening the distances between them, then directed the student to ride over the jumps in reverse direction. The student’s horse was unable to take a stride after the first jump, knocked down the second jump, causing the student to fall, injuring her coccyx and two vertebrae. (Id. at p. 820.) Galardi followed Tan and concluded the instructor owed the student a duty of ordinary care. (Galardi v. Seahorse Riding Club, supra, at pp. 823-824.) Thus, the student’s negligence claim was not barred by primary assumption of the risk; instead, the case involved secondary assumption of the risk which was not a complete bar to the student’s recovery. (Id. at p. 824.)
In Wattenbarger, a 17-year-old plaintiff injured his pitching arm while trying out for the Cincinnati Reds baseball team. (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at pp. 749-750.) After he heard his arm “pop” after he threw his third warm-up pitch, the plaintiff stepped off the mound and told Reds’ personnel, including the defendant who was supervising the tryout, that his arm had popped. Hearing no response, the plaintiff returned to the mound, threw another pitch, and injured his arm. (Id. at pp. 749-750 & fn. 2.) The court noted, “an arm injury such as that suffered by plaintiff is a risk inherent in the sport of baseball” and had the plaintiff stopped pitching after his third pitch, we would have no difficulty finding primary assumption of the risk a bar to recovery. But primary assumption of the risk did not apply because the plaintiff “was seeking guidance as to how to proceed.” (Id. at p. 753.) Wattenbarger followed Galardi and concluded the defendants subjected the plaintiff to a risk not inherent in the game by allowing him to continue pitching with an injured arm. (Wattenbarger v. Cincinnati Reds, Inc., supra, at pp. 754-756.)
The principle underlying Tan, Galardi, and Wattenbarger is that instructors and coaches owe their students a duty of ordinary care not to direct their students to perform the sport or activity under unsafe conditions, or risks of injury above and beyond the risks inherent in performing the sport under customary or normal conditions. Tan, Galardi, and Wattenbarger each involved instructors or coaches who directed their students to perform the sport under unsafe conditions or risks of injury not inherent in performing the sport under customary or normal conditions. By directing the students to perform the sport under unsafe conditions, the instructors increased the risk of injury above the risk inherent in the sports. Directing a student to ride a horse over unreasonably high and inadequately spaced jumps, as occurred in Galardi, or directing a student to ride a lame horse over a rocky track, as occurred in Tan, effectively directed the student to incur risks of injury not inherent in horse jumping or jockey training under customary or normal conditions. Likewise, directing a pitcher to throw a pitch with an injured arm, as occurred in Wattenbarger, subjected the pitcher to a risk of injury not inherent in pitching. With these principles in mind, we turn to Arnzen’s claims on appeal.
D. Defendants Met Their Initial Burden of Production
Arnzen claims defendants did not meet their initial burden of production on their motion for summary adjudication of her negligence claim. (Aguilar, supra, 25 Cal.4th at pp. 849-850.) Arnzen argues, “all [defendants] did was argue that slipping and falling were necessarily a risk inherent in cheer activity in question, and that they had no duty to take extra precautions to protect against those risks.” (Italics added.) Arnzen claims defendants could only meet their initial burden by showing that “Jebrail’s directive—to perform complicated acrobatic stunts on the slippery and hard track surface, without mats or other safety precautions—did not increase the risk of injury to Arnzen.”
We conclude defendants’ initial evidentiary showing was sufficient to meet their initial burden of production, and shifted the burden to Arnzen to raise a triable issue of fact on the duty element of her negligence claim.
Defendants’ initial burden was to make a prima facie showing sufficient to establish a complete defense to Arnzen’s negligence claim, or to show that Arnzen could not establish at least one element of her negligence claim. (Aguilar, supra, 25 Cal.4th at p. 849.) Defendants were required to show there was no factual basis for relief on any theory of negligence liability reasonably contemplated by the allegations of Arnzen’s SAC. (Eriksson v. Nunnink, supra, 191 Cal.App.4th at pp. 848-849.)
In her SAC, Arnzen alleged defendants increased the risk of injury inherent in performing the liberty extension stunt, and breached their duty of ordinary care to Arnzen, by directing Arnzen and the other cheerleaders to perform the stunt under two unsafe conditions: (1) on the slippery and hard dirt track surface, (2) without safety mats. Arnzen did not allege that the dirt track was unsafe due to a loose layer of gravel, that the girls’ shoes were wet when the stunt was performed, or that the bottoms of the girls’ shoes were too smooth and thus too slippery to perform the stunt on any surface.
In their motion, defendants presented undisputed evidence that Jebrail directed Arnzen and the other cheerleaders to perform the stunt on the dirt track, without safety mats, after halftime at the September 2012 homecoming game, and that the track had dried by the time halftime had ended. Arnzen stipulated that the track was dry when the stunt was performed after halftime. This supported a reasonable inference that the track was not unusually slippery, or more slippery than it was was in its normal, dry condition, when the stunt was performed after halftime.
Defendants also showed that Arnzen and other TVHS cheerleaders had performed the stunt numerous times on hard surfaces, without safety mats, including on the dirt track and on TVHS’s wood gymnasium floor. Defendants demonstrated that section H of the 2012-2013 AACCA rules did not require safety mats to be used for the liberty extension stunt, but only required “[b]asket tosses, elevator/sponge tosses and other similar multi-based tosses” to be performed “on a mat, grass or rubberized track surface.” Defendants showed that the liberty extension stunt is not a “toss,” as it involves lifting rather than tossing the flyer.
By this showing, defendants demonstrated much more than the “mere” fact that falling and suffering a head injury is an inherent risk of performing the liberty extension stunt. Defendants showed that the alleged unsafe conditions under which Jebrail directed Arnzen to perform the stunt—on the hard dirt track and without safety mats—were not unusually unsafe conditions, but were conditions under which the stunt was normally and customarily performed. (See Tan v. Goddard, supra, 13 Cal.App.4th at pp. 1535-1536 [instructor owed Tan “a duty of ordinary care to see to it that the horse he assigned Tan to ride was safe to ride under the conditions he prescribed for that activity.”].)
To be sure, defendants did not attempt to show that the hard condition of the dirt track or the absence of safety mats did not increase the risk of injury to Arnzen above the risk inherent in performing the stunt on a softer surface or on safety mats. But defendants were not required to make this showing. Indeed, it would have been impossible for defendants to show that the failure to use any particular safety precaution, which is not normally or customarily used for the activity in question, would not have decreased the risk of injury below the risk inherent in participating in the activity under usual or customary conditions.
Arnzen relies on Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577, to support her claim that defendants did not meet their initial burden of production. The plaintiff in Vine alleged that the defendant ski resort “was negligent in the design, construction, testing, or supervision of the snow board jump on which plaintiff was injured.” (Id. at p. 582.) The defendant moved for summary judgment. (Id. at p. 583.) Vine explained that, in order to meet its initial burden of showing it owed no duty to the plaintiff because the plaintiff had assumed the risk of her injury, the defendant “had to show either that its jump did not increase the inherent risk of snowboard jumping, or that whatever defects the jump may have had were included in those risks.” (Id. at p. 591, italics added.) The defendant made neither showing. Instead, the defendant claimed only that falling was an inherent risk of snowboarding, and this was insufficient to shift the burden to the plaintiff to raise a triable issue of fact “as to whether the jump posed risks beyond those inherent in snowboard jumping. [Citations.]” (Id. at pp. 591-592.)
Here, however, defendants showed that the stunt was usually and customarily performed on hard surfaces, without safety mats, and that the dirt track was not unusually slippery or in any other unusually dangerous condition when Arnzen fell. This showing, which the defendant ski resort in Vine did not make, clearly distinguishes this case from Vine. The defendant in Vine did not show either that its jump did not create an unusually dangerous condition over and above the normal risk inherent in snowboarding, or that whatever defects the jump may have had were included in those risks. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 591.) Thus, Vine does not assist Arnzen’s argument.
E. Arnzen Did Not Raise a Triable Issue That the Track Was in an Unusually Dangerous Condition When the Stunt Was Performed After Halftime
Defendants’ initial showing was sufficient to shift the burden to Arnzen to raise a triable issue of fact on the duty element of her negligence claim. (Code Civ. Proc., § 437c, subd. (o)(2).) In her opposition, Arnzen presented the declarations of Barres, a former TVHS varsity song coach, and Durnhil, a member of the 2012-2013 varsity cheer team with Arnzen, that the dirt track was slippery because it had a top layer of loose gravel. Barres also averred that the track was “hard like concrete below the slippery layer of gravel.” But this evidence only showed that the track normally had a layer of loose gravel and was a hard surface. As such, this evidence did not raise a triable issue of fact as to whether Jebrail directed the girls to perform the stunt under unusually unsafe conditions.
Durnhil, who was present at the 2012 homecoming game, also averred that the cheerleaders’ shoes were “wet and slippery from warming up on the wet grass” before the game, and stated based on inadmissible hearsay (she heard the cheer captains tell Jebrail) that the wet condition of the girls’ shoes was communicated to Jebrail before the stunt was performed. Arznen’s mother, Noelle, averred that the shoes provided for the varsity cheer team in September 2012 “had a smoother bottom and less traction” than the shoes the girls had worn in earlier years, and stated based on inadmissible hearsay that “[t]he cheerleaders complained that the shoes were slippery on the [dirt] track.” But Arnzen presented no evidence that the girls’ shoes were wet when the stunt was performed after halftime, when Arnzen fell and was injured. Moreover, the SAC did not allege the loose gravel or the wet or smooth condition of the girls’ shoes as unsafe conditions under which the stunt was performed. Thus, defendants were not required to show that these conditions did not increase the risk of injury inherent in performing the stunt, or that these conditions were included in the risks inherent in performing the stunt. (Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at p. 591.)
Arnzen’s expert witness, Archie, relied on the evidence adduced on the motion to support her opinions, and had no personal knowledge of the condition of the track at any
time. Archie’s opinion that the track was too hard and too slippery of a surface upon which to perform the stunt did not establish that the dirt track was in an unusually slippery or otherwise unusually dangerous condition when the stunt was performed.
F. Arnzen Raised a Triable Issue of Fact Whether TVHS Had a Safety Mats Policy
Even though Arnzen did not raise a triable issue as to whether the dirt track was in an unusually unsafe condition when the stunt was performed, or show that the failure to require safety mats for the liberty extension stunt violated the AACCA rules, and even though much of Arnzen’s evidence was based on inadmissible hearsay and statements lacking sufficient evidentiary foundation (Evid. Code, §§ 1200, 403, subd. (a)(2)), Arnzen managed to present sufficient evidence—through the statements of Burlingame and Jebrail—to raise a triable issue of fact concerning whether TVHS had a policy which required the liberty extension stunt to be performed on safety mats at the time of the 2012 homecoming game. This requires reversal of the judgment.
In her SAC, Arnzen alleged that, “[d]uring the entirety of the previous season” before the 2012 homecoming game, “the TVHS Cheerleading Team used safety mats for airborne cheerleading stunts, including the liberty extension.” The SAC alleged that the purpose of the safety mats was to protect the cheerleaders from injury.
Barres, who served as TVHS’s varsity song coach in 2011, averred that, in 2011, Burlingame told Barres that “safety mats were now required for all stunts . . . .” (Italics added.) Burlingame was the TVHS activities director, Jebrail’s direct supervisor, and was “responsible for handling the cheerleading teams” at TVHS. Burlingame’s position and the scope of her responsibilities show she was authorized to speak on behalf of both Jebrail and the District on the question whether TVHS had a policy of requiring all stunts to be performed on safety mats, beginning in 2011 and continuing in 2012. Thus, Burlingame’s statement to Barres that safety mats were “now required for all stunts” was admissible against the District as an authorized admission of the District. (Evid. Code, § 1222; Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 366 [whether a statement is an authorized admission is to be determined under the substantive law of agency]; O’Mary v. Mitsubishi Electronics America, Inc. (1997) 59 Cal.App.4th 563, 570 [employee’s authority to make statement for his or her employer “‘concerning the subject matter of the statement’” can be express or implied].) Clermont, a cheer team “mom,” also averred that, around September 2011, Jebrail told Clermont that TVHS “now had a policy that would require” the varsity cheer team to use safety mats on the dirt track. This statement was admissible against Jebrail as an admission of a party opponent. (Evid. Code, § 1220.)
Thus, defendants did not demonstrate, based on all of the admissible evidence presented on the motion, that Arnzen would be unable to prove the duty element of her negligence claim. (Aguilar, supra, 25 Cal.4th at pp. 849-851.) If TVHS had a safety mats policy at the time Arnzen fell and was injured at the September 2012 homecoming game, then Arnzen may be able to show that defendants were negligent in failing to require the liberty extension stunt to be performed on safety mats, and that said failure was a substantial factor in bringing about Arnzen’s injuries.
We observe that the existence and scope of the TVHS safety mats policy is in dispute. Jebrail understood that the safety mats policy was limited to “tosses and tumbling,” and section H of the 2012-2013 AACCA rules required “[b]asket tosses, elevator/sponge tosses and other similar multi-based tosses” to be performed “on a mat, grass or rubberized track surface,” but did not expressly require the liberty extension stunt to be performed on such surfaces. But Durnhil averred that, during the September 2012 homecoming game, the cheerleaders were performing “basket tosses” as well as “extensions” on the dirt track, without safety mats. This indicates defendants violated section H of the AACCA rules in allowing basket tosses to be performed on the dirt track, without safety mats, at the 2012 homecoming game.
The existence and scope of a safety mats policy is a material issue of disputed fact which goes to the heart of the question of duty. In determining whether or not a duty of care is owed in a given situation, a court must consider a number of factors, including “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the
injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. [Citations.]” (Rowland v. Christian, supra, 69 Cal.2d at p. 113.) We emphasize that the failure to comply with a safety mats policy, if any, designed to protect the cheerleaders from injury, fundamentally and materially goes to the question of duty.
G. Arnzen’s Request for Judicial Notice Is Denied
Lastly, Arnzen has requested this court to take judicial notice of two documents that were not submitted to the trial court for its consideration in ruling on the MSJ: (1) the legislative history of Assembly Bill No. 949 (A.B. 949), otherwise known as “the C.H.E.E.R.S. Act,” which was approved by Governor Brown on October 7, 2015 and which added section 33353.7 to the Education Code effective January 1, 2016 (Stats. 2015, ch. 564, § 1, eff. Jan 1, 2016); and (2) statements made by Assemblywoman Lorena Gonzalez (D-San Diego), the author and sponsor of A.B. 949, concerning the need for the bill and its intended purpose.
Education Code section 33353.7 directs the California Interscholastic Federation (the CIF), in consultation with the State Department of Education (the Department), to, no later than July 1, 2017, “develop guidelines, procedures, and safety standards for the purpose of classifying competition cheer as an interscholastic sport that is consistent with the United States Department of Education’s Office for Civil Rights’ definition of a sport.” (Ed. Code, § 33353.7, subd. (a), italics added.)
The statute defines “competition cheer” as “a sport in which teams participate in direct, head-to-head competition with one another using an objective scoring system.” (Ed. Code, § 33353.7, subd. (b).) The statute also directs the CIF to “seek a United States Department of Education Office for Civil Rights Title IX compliance designation for competition cheer.” (Id., subd. (c).)
Defendants oppose the request. We deny the request for two reasons. Although official acts of the Legislature and government documents are a proper subject of judicial notice (Evid. Code, § 452, subd. (c); Vargas v. City of Salinas (2009) 46 Cal.4th 1, 22, fn. 10), (1) the documents were not presented to the trial court (Jefferson Street Ventures, LLC v. City of Indio (2015) 236 Cal.App.4th 1175, 1190), and (2) the documents are not relevant to this appeal (People v. Townsel (2016) 63 Cal.4th 25, 42, fn. 2).
Although the author of A.B. 949 indicated that enacting uniform safety standards for competition cheer is necessary to “ensure a certain level of coaching competency and skill once safety guidelines are developed by the Department and CIF” (A.B. 949, p. 2), the record in this case shows that competition cheer is not the same as high school cheer. Further, the enactment of safety guidelines for competition cheer, effective July 1, 2017, has no bearing on whether defendants owed Arnzen a duty, on September 28, 2012, to require that the liberty extension stunt be performed on safety mats and not the dirt track.
The judgment is reversed. Arnzen’s request for judicial notice is denied. (Evid. Code, § 459, subd.(a).) Each side shall bear its costs on appeal. (Cal. Rules of Court, rule 8.278.)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Acting P. J.
|Description||At Temecula Valley High School’s (TVHS) homecoming football game on September 28, 2012, plaintiff and appellant, Heather Arnzen, a senior and experienced varsity cheerleader at TVHS, fell and suffered a head injury while serving as a “base” for a stunt called the “liberty extension.” The stunt was performed, without safety mats, on the dirt track next to the football field, and Arnzen’s head hit the dirt track when she fell. The dirt track had been sprayed with water before the game but was dry after halftime when the stunt was performed and Arnzen fell. Arnzen sued defendants and respondents, Temecula Valley Unified School District (the District), and her cheer coach, Revan Jebrail, a District employee (collectively, defendants), for her injuries. Arnzen alleged causes of action against each defendant for negligence and premises liability.|
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