Gill v. Tamalpais Union High School Dist.

Filed 5/14/08 Gill v. Tamalpais Union High School Dist. CA1/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Plaintiff Jennifer Gill suffered a cut on her face when she collided with the metal pole supporting an outdoor basketball backboard. The pole was on premises of defendant Tamalpais Union High School District (Tamalpais or District). While still on Tamalpais property awaiting first aid treatment from Presidio Sport & Medicine (Presidio), Gill fell off a raised counter and suffered additional injuries. A jury found for Gill, apportioning 60 percent of the responsibility for her damages to Tamalpais and 40 percent to Presidio. The jury awarded Gill approximately $477,000 for economic and non-economic losses. After applying Proposition 51, the court entered judgment for Gill against Tamalpais in the amount of $336,932. On Tamalpaiss cross-complaint against Presidio for indemnification, the judge entered judgment in favor of Tamalpais for $50,572.80. All parties have appealed, and the appeals have been consolidated.

On Tamalpaiss appeal, we conclude that the issues of whether Gill was injured by the dangerous condition of public property and whether Gill was barred by the doctrine of primary assumption of risk were appropriately decided against Tamalpais. We further conclude that two instances of questionable closing arguments by Gills trial counsel do not qualify as misconduct sufficiently potent to require reversal. We also conclude that the trial court did not err in deciding as a matter of law an issue Tamalpais claims should have been left to the jury, namely whether Gill was injured during an activity that was sponsored or supervised by the District; moreover, the courts action does not qualify as prejudicial. We reject a number of contentions that the trial court committed instructional error. Finally, we conclude that substantial evidence supports the jurys allocation of fault between Presidio and Tamalpais.

On Gills appeal, we reject her contention that the trial court misapplied Proposition 51 when it declined to make Tamalpais liable for all of the non-economic damages awarded by the jury. We also conclude that the court did not err in declining to award her interest on a judgment that was prematurely and erroneously entered.

On Presidios appeal, we find without merit its contention that it was entitled to judgment as a matter of law because there was no competent evidence from which the jury could conclude that Presidio committed professional negligence.

In light of these conclusions, we affirm the judgment and the order denying

Presidios motion for judgment notwithstanding the verdict.

BACKGROUND

The Facts

The salient circumstances are largely without dispute. Viewed most favorably to Gill as the prevailing party (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787 (Cassim), the evidence shows the following:

On November 1, 2001, Gill was 15 years-old and a sophomore at Redwood High School, which is part of the District in Marin County. Gill wanted to be on the Redwood High girls junior varsity basketball team. She believed it would make a favorable impression on the teams coach, and thus improve her chances of making the team, if she attended the open gyms held at Redwood High.[1]

For more than five weeks, the open gyms had been conducted inside the schools gymnasium. However, at the open gym held on the afternoon of November 1, after regular school hours, Gill was participating in basketball drills that were conducted on the outdoor courts at Redwood High. Each of the basketball backboards is attached to the end of two hollow metal poles. The poles are anchored in the ground, on the painted baseline (boundary) of the court. The poles can be covered with pads, and officials at Tamalpais had directed that the outdoor courts were not to be used unless the poles were be covered with pads, which Tamalpais had. On November 1, the pads were not in use.[2]

Robin Goddard was the Redwood High girls basketball coach and the person in charge of the open gym. After stretching and running drills, Goddard directed about two dozen girls present to begin lay-up drills, which led to the incident here.

As described by Gill, the drill required each girl to run the length of the court while dribbling the ball until she was near the basket, and then launch a hook shot off one foot. Next, [y]ou run back through under the basket and collect your ball, and then just run to the other side and repeat it. About the third or fourth time Gill approached the basket, I was running . . . towards the basket . . . and the sun caught in my eyes, and I was looking back to see if I had made the shot, and I hit the pole. The collision gave her a cut right underneath my right eyebrow, and it was bleeding pretty profusely. Stunned and disoriented, Gill was escorted off the court, and over to Coach Goddard, who told Gill to go to the training room in the gymnasium to get patched up.[3]

When Gill arrived at the training room, she saw it was full, i.e., all of the training tables were occupied, and the trainer, Kendra Jordan, was attending to someone else. Gill told Jordan what had happened: Hey, I hit my head on a pole, can you help me? [] . . . [] . . . There was a wooden counter against one of the walls, and she [Jordan] directed me towards it. She patted on the counter, she said Hop up here and I will help you out in a minute. 

Gill got up on the counter, from where she watched Jordan walk into another room. At that point, Gill testified I lost my vision and I said out loud, I dont feel good. I feel dizzy. And thats all I remember. Gill fainted, and fell to the floor on her face.[4] One of her teeth was knocked out, and two others were hanging by a thread. All of the teeth were front teeth on Gills upper jaw. The school nurse was summoned, examined Gill, and made the decision that the injuries were sufficiently serious to warrant taking Gill to a nearby hospital.[5] Gill needed assistance to stand and walk, and was vomiting and spitting blood as Goddard took her to a hospital.

Gill spent the night at the hospital. The cut on her face required three stitches, and left a scar. The tooth that was knocked out is permanently lost; two others were badly damaged and needed root canals to be saved. A bridge was made for the missing tooth, but Gill suffered an allergic reaction to it, and her gums became inflamed as a result. Still, Gill had to live with it for about a year and a half. Gill will need a new bridge every three to five years, unless she gets implants for all three teeth.

Gill missed attending school for about ten days because she was suffering

migraines and toothaches, and because she had constant trips to the dentist. For about six weeks, Gill could not eat any food that required the use of her missing and damaged front teeth. For seven months she could eat only soft foods that did not require use of those teeth. When Gill returned to school, she was still suffering from migraines, and taking pain medication.[6] Her grades suffered, and she was dropped from the basketball team in a publicly humiliating way. She also developed an acute fear of dentists, a fear that required counseling.[7]

Contra Costa Firefighter and Paramedic Dan Colbath testified as an expert on first aid, particularly with respect to head injuries. He gave his opinion that the conduct of both Goddard and Jordan, each of whom is Red Cross-certified on first aid and CPR, fell below the first aid standard of care. According to Colbath, Goddard should first have sat Gill down and checked to she if had suffered a concussion. Goddard should have stayed with Gill to the training room, and not delegatedshirking it, was Colbaths characterizationthe task to other players. Also, Goddard should have gone with Gill so that she could have told [Jordan] the sport trainer exactly what happened, She was running at full speed, hit her head on the pole. 

Colbath further testified that Jordan also failed to take necessary and ordinary first aid steps. Jordan should have spoken with Gill to get an idea of the injury and its seriousness. And she should not have walked away from Gill, because a person with a head injury should never be left alone. Moreover, Jordan should have put Gill on one of the training tables (even if it meant displacing someone with a potentially less serious injury), and not on the counter. The potential for Gill falling was a distinct possibility because head injuries commonly produce dizziness and a drop in blood pressure. Both Goddard and Jordan should have called 911 at once, most certainly after Gills fall from the counter: As Colbath vividly described it, it was criminal, ludicrous, and insane that they didnt call 911 after the second injury. There was no justification for not having experienced paramedics transport Gill to the hospital.

Gill presented testimony from a safety expert that the double-pole support system used at Redwood High was a commercial antique, and is no longer available. The design has been eclipsed by a single-pole support, which has the obvious benefit of halving the potential for collisions. Another modification that has become standard is to have the supporting pole situated at least three feet behind the baseline, not on the baseline as was the case when Gill was injured. Again, the reason for this change is safety: in the experts words, To reduce interaction between the player and the poles. It was also accepted practice since 1987 that metal poles and goalposts should be padded. Answering a hypothetical question based on the facts of this incident, the expert gave her opinion that the unpadded stanchion constituted a dangerous condition. As she put it: [T]his is a really simple issue. You have a large metal pole thats in the middle of a dynamic physical activity and its not padded. And based on the human factors and safety issues, its really a no-brainer.

Coach Goddard testified why she did not ask that the pads be put on the poles: I didnt think it was necessary, and I didnt even know if anybody was around from the PE department sobecause it was after school. According to Goddard, Gill seemed totally fine when she came up to Goddard after striking the pole. Goddard sent Gill to the trainer because she (Gill) asked . . . if she could go with her friends to the physical trainers office to get a Band-Aid, so I said sure.[8] Goddard also agreed because Jordan was kind of the expert in injuries, and had a lot more training than I do. When Goddard heard of the accident minutes later, she canceled the open gym, and assisted Gill in getting to the hospital.

Kendra Jordan, who herself graduated from Redwood High in 1995, stated that among her responsibilities was assessing and treating injuries suffered by athletes at Redwood High. Jordan testified that when she first saw Gill at the door of the training room, She seemed to be perfectly balanced, and nothing seemed odd to me. Jordan did not think it necessary to make room for Gill on one of the training tables because Gill was upright, coherent, and she didnt appear to be dizzy, wasnt slurring her speech, everything was completely normal.

Jordan further testified that Gill got up on the counter on her own initiative, that Jordan did not direct Gill to do so. Jordan was leaving to get gloves and material to stanch the blood from Gills cut when Gill fell to the floor. Jordan testified that she did ask one of the adults who came into the room after the fall to call 911. She did not consider moving another student to put Gill on one of the training tables, nor did she think of calling 911 before Gills fall because [i]t just wasnt an emergency situation at that time.[9]

The evidence also showed that Presidio conducted its operations at Redwood High pretty much on its own, pursuant to an Agreement for Consultant Services. Among the

services Presidio agreed to provide were the assessment and treatment of athletic injuries and first aid, for approximately 30 hours per week. It was Presidio that hired the persons, paid them, and sent them to Redwood High to maintain a clinic. Presidio also set up the training room and provided day-to-day operating supplies for it, but not the training tables. As far as Jordan knew, her job performance was never evaluated by officials at Redwood High or Tamalpais. And there was no evidence that Tamalpais possessed the authority to direct Presidios personnel or operations at Redwood High. Jordan testified that she was certified in first aid and CPR, and that her training included evaluation and treatment of head injuries.

The Proceedings Below

Gill filed a complaint seeking damages from Tamalpais. The complaint had two causes of action. As to the first cause of action, for general negligence, the trial court granted Tamalpaiss motion for judgment on the pleadings; it is not at issue here. The jury considered only Gills second cause of action, entitled Premises Liability in the complaint, but in reality a claim that Tamalpais had maintained a dangerous condition of public property (Gov. Code,  835). Tamalpais filed a cross-complaint against Presidio for indemnification should Tamalpais be liable to Gill.

The evidentiary phase of the trial began on November 3, 2005, and concluded on November 15. The jury began deliberating on the morning of November 18, and that afternoon returned a special verdict answering special interrogatories.[10] The jury found that Tamalpais did maintain a dangerous condition of property; that Tamalpais had notice of the condition and could have protected against it; that it was reasonably foreseeable the condition would cause harm; and that the condition was a substantial factor in causing harm to Gill. The jury further found that Presidio was negligent, and that its negligence was a substantial factor in causing . . . harm to Gill. Gill herself was not found negligent.

The jury fixed Gills damages for Past economic loss, including medical

expenses at $27,232.61; for future economic loss, including future medical expenses at $99,700; for Past non-economic loss, including physical pain and mental suffering at $250,000; and future non-economic loss, including pain and mental suffering at $100,000. The jury fixed Tamalpaiss responsibility at 60 percent, with the remaining 40 percent assigned to Presidio.[11]

Judgment on the verdict was entered that day, but the court subsequently vacated the judgment.

The court was then deluged with a flurry of motions. Tamalpais moved for judgment notwithstanding the verdict (NOV) against Gill on the ground that the evidence showed there was no dangerous condition as a matter of law. Tamalpais also moved for a new trial against Gill on the same ground. Tamalpais also moved for judgment NOV against Presidio on the ground that the apportionment by the jury of the damages between Tamalpais . . . and Presidio . . . is not supported by the evidence. Tamalpais moved for a partial new trial on the grounds that the damages assessed against it, vis‑‑vis Presidio, were excessive, and that the court committed instructional error.

Presidio also moved for judgment NOV, on the ground that the uncontradicted evidence [showed] that Kendra Jordan met the professional standard of care for certified athletic trainers and therefore was not negligent in the in treatment of the plaintiff. Presidio also filed a motion asking for application of Proposition 51 (Civ. Code,  1431 et seq.), so that Presidio had no liability for Gills noneconomic damages, and was liable for only 40 percent of Gills economic damages.

Finally, Gill asked for postjudgment interest in the amount of $2,835.45, allegedly having accrued since the November 18 judgment.

After hearing argument on the motions, the trial court ruled as follows:

Applying Proposition 51, the trial court held that because Gill did not sue Presidio, she could recover only 60 percent of the $350,000 non-economic damages awarded by the jury that was attributed to Tamalpais; in other words, Gill could recover only $210,000 of her non-economic damages from Tamalpais. On the other hand, Tamalpais remained jointly and severally liable to Gill for the full amount of economic damages, $126,932, awarded by the jury. However, Tamalpais was entitled to recover 40 percent of that amount, $50,572.80, from Presidio because Tamalpais prevailed on its cross‑complaint. Accordingly, Gill would have judgment against Tamalpais for $336,932, and Tamalpais would have judgment against Presidio for $50,572.80. All of the other motions were denied.

The court then entered judgment in favor of Gill against Tamalpais in the amount of $336,932 (i.e., economic damages of $126,932 and non-economic damages of $210,000), and in favor of Tamalpais on its cross-complaint against Presidio for $50,572.80 (i.e., 40 percent of the economic damages of $126,932 awarded Gill from Tamalpais).

Every party appealed from the judgment; Presidio also appealed from the order denying its motion for judgment NOV. We ordered the three appeals consolidated.

DISCUSSION

TAMALPAISS APPEAL (A112705)

Tamalpaiss appeal is in two parts. The first part is directed against Gill, the second against Presidio. At the time we ordered consolidation of the appeals, we accepted a proposed stipulation from the parties that allowed Tamalpais to file separate opening briefs in connection with each part of the appeal. We address each part in turn.

Tamalpaiss Appeal Against Gill

In its appeal against Gill, Tamalpais argues that the case should never have gone to the jury because the trial court declined to rule as a matter of law that there was no dangerous condition or that Gills suit was barred by the doctrine of primary assumption of risk. Tamalpais then argues that the court erred in not instructing the jury on secondary assumption of risk, and in not letting the jury decide whether Gills injuries occurred under school sponsorship. Lastly, Tamalpais concludes by arguing that it was the victim of prejudicial misconduct by the final arguments made by Gills attorney.

The Issue of Dangerous Condition was Correctly Submitted

To the Jury

As relevant here, Government Code section 835 provides that Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . [] . . . or [] (b) The public entity had actual or constructive notice of the dangerous condition . . . a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. However, a public entity is not liable to any person participates in a hazardous recreational activity . . . for any damage or injury to property or persons arising out of that hazardous recreational activity. (Gov. Code,  831.7, subd. (a).)

Twice the trial court denied motions for summary judgment by Tamalpais. The grounds for the first motion were that Gills claim was barred by the doctrine of assumption of risk and by section 831.7. The pertinent parts of the courts ruling read:

The motion for summary judgment is denied. Defendants facts and evidence are insufficient to establish the defense of primary assumption of the risk. . . . Here, the evidence shows that padded poles were a normal aspect of outdoor basketball practices at the school. Particularly given the structure of open gym and its connection to the school basketball team, . . . defendant offers no logical reason why the pads would be deemed necessary for P.E. classes and basketball team practices, but not supervised drills outside the normal basketball season. . . . The evidence shows defendant may have increased the inherent risks of injury by arbitrarily failing to take corrective measures already in place for school-supervised basketball, and directing students to engage in drills around poles known to be unsafe.

[] . . . [] The immunity in Government Code section 831.7 does not apply as a matter of law.  [H]azardous recreational activities do not include school-sponsored extracurricular athletic activities under the supervision of school personnel. (Acosta v. Los Angeles Unified School District (1995) 31 Cal.App.4th 471, 476.)

Tamalpais later renewed its motion after the first attempt at trying the case ended with a deadlocked jury. It again sought summary judgment claiming that new evidence and new case law on the assumption of risk doctrine . . . is dispositive against Gill on the issue of whether Tamalpais had maintained a dangerous condition of public property.

The court denied the renewed motion, ruling that Neither the new case law nor the new evidence would support a change in the courts order filed July 30, 2003, denying summary judgment. [] . . . [] As the court stated in its order filed July 30, 2003, defendants facts and evidence are insufficient to establish the defense of primary assumption of the risk. The evidence continues to show that defendant may have increased the inherent risks of injury by arbitrarily failing to take corrective measures already in place for school-supervised basketball, and directing students to engage in drills around poles known to be unsafe.

Just before the case went to the jury for the second time, Tamalpais made a third effort, in the form of a motion for nonsuit, to have the issues of assumption of risk and dangerous condition of public property be decided as matters of law. The court denied this motion as well.

Tamalpais refused to give up, and after the jury returned its verdict, Tamalpais moved for a new trial and for entry of judgment NOV on the ground that Gill had not established the existence of a dangerous condition. The court denied both motions.

Without specifying which of these decisions, or all of them, it is attacking, Tamalpais contends that because plaintiff failed to establish a dangerous condition, the court erred in sending the case to the jury. We are not persuaded.

At first glance, it appears that the issue as framed by Tamalpais involves a question of the sufficiency of the evidence. The existence of a dangerous condition is ordinarily a question of factresolved here by the jurys express finding . . . but it can be decided as a matter of law if reasonable minds can come to only one conclusion. (Bonanno v. CentralContraCostaCounty Transit Authority (2003) 30 Cal.4th 139, 148.) Because the trial court decided to submit the issue to the jury, there need only be a minimum of evidence to sustain the courts decision. Having reviewed the record, we find no basis for overturning that decision.

But a close reading of the specific arguments made by Tamalpais discloses that Tamalpais is framing the issue as involving points of law. Tamalpais argues that the condition of the unpadded pole was open and obvious and thus there was no substantial danger which [was] not apparent to those using the property in a reasonably foreseeable manner with due care. (Quoting Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 131.) Logically, this sounds as if Tamalpais is implicitly saying it was Gills fault that she came into contact with the pole, which anyone would know carried a risk of injury. But Tamalpais does not make an open challenge to the jurys unanimous finding that Gill herself was free of negligence. (See fn. 11, ante.) Calling the pole an open and obvious danger reflects an attempt to elide the jurys findings and recharacterize the issue to Tamalpaiss advantage.

In any event, Tamalpaiss argument is belied by the evidence of its own actions. The jury heard evidence that Tamalpais determined the pads were a proper safety measure even before there was a demonstrated need. Tamalpais decided to use the pads prior to the start of the 2000 school year, before there was a reported accident involving the poles. Thereafter, it became school policy to have the pads in place when the basketball and volleyball courts were used in physical education classes.[12] It was only on November 2, 2000, when the pads were not used, that a student ran into the pole and was injured. Following this incident, the schools athletic director reiterated the policy of having the pads in place if the courts were being used. This was substantial evidence that Tamalpais itself did not treat the problem of uncovered poles as open and obvious.

Tamalpais next argues, however briefly, that the accident history showed no dangerous condition existed. After the first students injury, one might wonder just how many further injuries would be required to get Tamalpais to recognize that its property had a dangerous condition. This rhetorical observation notwithstanding, Tamalpaiss argument is based on the implicit premise that there has to be a history of accidents before liability can attach. Not so. The governing statutes speak of the public entity having actual or constructive notice of the dangerous condition, that it knew or should have known of its dangerous character. (Gov. Code,  835, 835.2.) The whole point of constructive notice is that it is just as effective, legally, as actual notice. If an accident history was intended, the Legislature would have dispensed with constructive notice. In short, liability can exist for the first accident caused by a dangerous condition. (See, e.g., Constantinescu v. Conejo Valley Unified School Dist. (1993) 16 Cal.App.4th 1466, 1474‑1475 [although there had been no prior accidents, the District knew for years through its own principals how dangerous this . . . area had become].) And, it must be reiterated, this was not the first accident.

Moreover, the issue of notice, actual or constructive, under Government Code section 835 was an issue of fact for the jury. (E.g., Stanford v. City of Ontario (1972) 6 Cal.3d 870, 880-884; Union Transp. Co. v. Sacramento County (1954) 42 Cal.2d 235, 245; Mathews v. State of California ex rel. Dept. of Transportation (1978) 82 Cal.App.3d 116, 122.) In deciding unanimously that Tamalpais knew of the risk and could have protected against it (see fn. 11, ante), the jury obviously resolved the issue against Tamalpais.

The last argument of Tamalpais on this point[13] is that public policy supports a finding that no dangerous condition existed. It is a frank plea for us to overturn the verdict on the ground that it would be an enormous burden on public entities if they were responsible for repairing all conditions that might lead to injury. Tamalpais seems to have no understanding that we are only an intermediate court of review, having no power to set aside a jury verdict rendered in conformity with established statutory criteria on the ground that it strikes us as contrary to our conception of the public good. Even assuming that we would agree with Tamalpais as to what constitutes sound policy, what Tamalpais wants is not our job. Public entities are allowed to argue to a jury that their conduct was reasonable under the circumstances. (Gov. Code,  835.4, subd. (a).) Even though the jury was instructed to this effect, Tamalpais chose not to make that argument to the jury, so it cannot be raised here. (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 720; Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 810-811.)

The Trial Court Did Not Err in Refusing to Decide as a Matter of Law

That Gills Case Was Barred by the Doctrine of

Primary Assumption of the Risk

Tamalpais next contends that the trial erred in failing to find the suit was barred by primary assumption of risk. We find no error.

Assumption of the risk comes in two forms, primary and secondary. Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [Citation.] Applied in the sporting context, it precludes liability for injuries arising from those risks deemed inherent in a sport; as a matter of law, others have no legal duty to eliminate those risks or otherwise protect a sports participant from them. [Citation.] Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendants role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. (Avilav. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, italics added, fn. omitted (Avila).) Secondary assumption of the risk arises when the defendant still owes a duty of care, but the plaintiff knowingly encounters the risks attendant on the defendants breach of that duty. (Id., fn. 6.) We are concerned here with primary assumption of the risk[14]

Without question, the game of basketball game has certain inherent risks. In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), the fount of current law concerning the doctrine of assumption of the risk in the sporting context, the Supreme Court noted: In some situations . . . the careless conduct of others is treated as inherent risk of a sport, thus barring recovery by the plaintiff. For example, numerous cases recognize . . . that in a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbow [citation]. (Id. at p. 316.)

Speaking in a pre-Knight decision, our late colleague Justice Rouse said this in the context of basketball played by adults: [P]laying basketball in a full-court game includes rough body contact . . . . [] It should be obvious to players and spectators alike that the full-court competitive basketball game is an intensely physical game fraught with risk of serious injury. Body blocks, charges, fouls, intentional or not, and accidental collisions with other players are routine and expected. In fact, the rules recognize this and assess penalties for fouls against ones opponent. Since none of the players wear any protection, such bodily contact takes a physical toll which routinely leads to cuts, bruises and other more serious injuries. (Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519-1520. (Yarber))[15]

First of all, it is important to remember the precise context in which Gill was injured. It was not, as in Yarber, a full-court competitive basketball game played by adults, but a drill where students practiced a specific maneuver on the court. On the other hand, these facts are not themselves dispositive. In the companion case to Knight, the Supreme Court did not exclude from assumption of the risk injury suffered by a plaintiff when not involved in a competitive event. (Ford v. Gouin (1992) 3 Cal.4th 339, 345.) And in Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, an arm injury suffered during baseball pitching tryout was largely accepted as an inherent risk of the sport.

But Wattenbarger did note a crucial distinction from Knight: As the court in Knight explained: [T]he scope of the legal duty owed by a defendant frequently will also depend on the defendants role in, or relationship to, the sport. [Citation.] Moreover, 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 . . . . [Citation.] (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th 746, 754, italics added.)

There is reason to doubt that colliding with a metal pole supporting the backboard in an inherent risk of basketball. The game can be played without a pole, as any observer of a professional basketball game or the March Madness NCAA Tournament would know. Put another way, basketball can be played without the backboard being suspended from a metal pole that is planted in the ground. Injury from hitting the metal pole can be eliminated as a risk without changing the essential nature of the game. Tamalpais knows this is true, because the backboards in the Redwood gymnasium are not mounted on poles, but are suspended from the ceiling.

But context requires a wider aperture. This setting here was not commercial. It was not purely social, as would be the case of friends playing touch football in a backyard. Use of the courts was not conditioned upon payment of a fee, as was the case in Yarber, and the injury did not come at the hands of a co-participant, as was the case in Knight. The injury here occurred under the aegis of a public school, at a school‑sanctioned event, on school grounds. The reason Tamalpais cannot claim the immunity of Government Code section 831.7an issue we address at length postis that it was not a disinterested party, but rather one that had a significant role in [and] relationship to that sport (Avila, supra, 38 Cal.4th 148, 161) as it was played on the afternoon of November 1, 2001.

And there is a solid basis for concluding that Tamalpais did not satisfy that responsibility. Even conceding that the poles were an unavoidable feature of outdoor basketball at Redwood High, due care required Tamalpais to take feasible steps to reduce the danger the poles posed to the students and players. As shown in the preceding discussion of dangerous condition, Tamalpais was aware of the danger, had procured the padded sleeves to mitigate the danger, but failed to use the sleeves on November 1.

Subsequent to Knight, our Supreme Court has noted that the object to be served by the doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity. (Kahn v. East SideUnionHighSchool Dist. (2003) 31 Cal.4th 990, 1011) That object would not be served here. The fundamental nature of the drill would not have been altered by putting the padding on the pole. We therefore agree with the trial courts conclusion that Tamalpais increased the risk to the players by failing to take corrective measures already in place for school-supervised basketball, and directing students to engage in drills around poles known to be unsafe. We thus hold that because Tamalpais had a duty of care to its students, and because its act of omission actually increased the danger of injury, it was not entitled to the defense of primary assumption of the risk as a matter of law.

There Was No Instructional Error On Secondary

Assumption of the Risk

At Tamalpaiss request the trial instructed the jury that A person assumes the risk of injury when participating in an activity which is done for enjoyment or thrill, requires physical exertion, as well as elements of skill, and involves a challenge containing a potential risk of injury. We are therefore puzzled at Tamalpaiss contention that the court erred in refusing to instruct the jury on secondary assumption of the risk.[16] Clearly there was no blanket refusal to instruct on the issue of assumed risk by Gill.

In the brief and conclusory argument behind its contention, Tamalpais does not point to other instructions it requested that would have cured this supposed deficiency. However, at oral argument Tamalpais indicated it was referring to four special instructions that are reproduced at an earlier point in its brief.[17] Even with this additional information, Tamalpais does not establish error.

First, the instruction on secondary risk quoted above was one of the special instructions offered by Tamalpais, so Tamalpais can hardly attack it. (Jentick v. Pacific Gas & Elec. Co. (1941) 18 Cal.2d 117, 121; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal,  384, p. 435.)

Second, Tamalpais is simply wrong on a matter of elemental fact. One of the special instructionsNo. 7which Tamalpais states was refused by the trial court, was given to the jury, so Tamalpais cannot claim that all of its proffered instructions were refused.

Third, Special Instructions Nos. 4 and 6 are subject to the defect that they are plainly argumentative, that is, they clearly favored Tamalpais. They were correctly refused on this ground. (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1108.)

Fourth, and most importantly, the instructions actually refused were properly refused because they were legally erroneous. The assumed common premise of the remaining instructions is that Gills collision with the pole was an inherent risk of the sport of basketball. The preceding discussion has demonstrated that this premise is false.

In the same vein, Tamalpais told the court that its Special Instruction No. 3(b) was authorized by Kahn v. East Side [UnionHigh SchoolDist.] (2003) 31 Cal.App.4th [sic: Cal.4th] 990 [and] Vine v. Bear Valley [Ski Co.] (2004) 118 Cal.App.4th 577. This is not true, at least in part. Both of these decisions rely on the general principle from Knight that a defendant has no duty to protect a plaintiff from risks that are inherent in a sporting activity, but a defendant does have a duty not to increase the risk of harm beyond that is truly inherent in the sport. (Kahn v. East Side Union High School Dist., supra, at p. 1019; Vine v. Bear Valley Ski Co., supra, at p. 591.) But the third sentence of the proposed instructionThe District is under a duty not to create, through action or inaction, an extreme risk of injury over and above that level inherent in the sportwent way beyond this formulation. At no point in either of the opinions does the court use the word extreme in describing the defendants duty to refrain from increasing the risk. It is but a single word, but it gives a completely different complexion to the proposed instruction, one that is decidedly slanted in favor of Tamalpais.

Lastly, we note that the jury was instructed, in the language of Tamalpaiss Special Instruction No. 3(a), about the concept of secondary assumption of the risk. And it was the basis for Tamalpais arguing the point to jury. It was also presumably the basis for the jurys unanimous conclusion that Gill had no percentage of responsibility for her injuries. (See fn. 11, ante.) In these circumstances, we would have no hesitation in concluding that any error in refusing the three additional instructions was harmless. (Cal. Const., art. VI,  13.)

The Trial Court Did Not Err In Deciding as a Matter of Law

That Gills Injury Occurred During

School-Sponsored Activity

At the same time that it denied Tamalpaiss motion for nonsuit, and over Tamalpais objection, the trial court ruled that I am going to find, as a matter of law, based upon the evidence set forth in this case, that this open gym, in the course of which she was injured, was not a hazardous recreational activity. But instead, it was a school-sponsored extracurricular athletic activity, under the supervision of school personnel, namely the coaches. Tamalpais contends that the court erred in taking the issue of whether the injury occurred during a school sponsored activity from the jury.

The issue as framed only arises in connection with the immunity granted by Government Code section 831.7 for hazardous recreational activity. The meaning and scope of this statute were explored by our Supreme Court in Avila, supra, 38 Cal.4th 148, decided after this case was tried. Agreeing with the approach adopted by the Court of Appeal in Acosta v. Los Angeles Unified School Dist., supra, 31 Cal.App.4th 471 (Acosta)which, not incidentally, was cited by the trial court here in its denials of Tamalpaiss summary judgment motionsthe court concluded that school-sponsored and supervised sports activities are not recreational in the sense intended by the statute, and thus section 831.7 does not apply to immunize public educational entities from liability to students for injuries sustained during participation in such activities. (Avila, supra, at p. 159.). Nothing in the legislative history indicates the Legislature ever contemplated or intended that passage of section 831.7 would overrule the body of law governing supervisorial duties and liability in the school sports context. We agree with the Court of Appeal in Acosta . . . : In the absence of any indication of such a legislative intent, we will not read section 831.7 as immunizing public entities from potential liability arising out of their oversight of school-sponsored activities. (Id. at p. 160.) In sum, if a student is injured during the course of supervised sports activity that is school-sponsored, there is no immunity.

The issue of an immunity statute in the Government Claims Act may be decided as a matter of law if the evidence is without dispute or reasonable minds could reach only one conclusion. (E.g., Richardson-Tunnell v. School Ins. Program for Employees(SIPE) (2007) 157 Cal.App.4th 1056, 1062-1063; Acosta, supra, 31 Cal.App.4th 471, 475-476 [issue of  831.7 immunity decided as matter of law where the facts are undisputed]; Giannuzzi v. State of California (1993) 17 Cal.App.4th 462, 467; Yarber, supra, 4 Cal.App.4th 1516, 1519 [same as Acosta].)

One point should be mentioned at the start. Tamalpais had asked the court to decide that the immunity applied as a matter of law, but Gill, in opposing the motion, had not moved for a decision that the immunity did not apply as a matter of law. Thus, there is some validity to Tamalpaiss protest that the court was going beyond the matter before it, and that Tamalpais was entitled an opportunity to brief the issue. However, the point becomes moot if the court was correct in treating the issue as one of law. That question turns on the state of the evidence. In other words, if the evidence is such that reasonable minds could only conclude that Gill was injured in the course of a school-sponsored activity, the courts ruling must be upheld.

Attempting to contrast the situations in Avila and Acosta, Tamalpais argues: In the case at bar, however, the jury reasonably could have inferred that Ms. Gill was not participating in a school-sponsored activity. Unlike the plaintiffs in Acosta and Avila, Ms. Gill was not a member of a school basketball team, and she was not working on skills for the team. The District presented evidence that the open gym participants themselves (middle-school aged girls as well as high school aged girls) picked their own teams, called substitutions and generally directed the course of play, which was much more casual than the ramped up energy of a team practice or extracurricular interscholastic game. Under these facts, a jury could reasonably infer that the open gym did not constitute a school‑sponsored activity.

Tamalpais is immediately in trouble because it is obvious from the quickest comparison of its brief with Gills brief that Tamalpais has failed to comply with the rule requiring an appellant challenging the sufficiency of evidence to set out in the opening brief all of the evidence pertinent to that point. By reason of this noncompliance, the point may be treated as waived. (In re Marriage of Fink (1979) 25 Cal.3d 877, 887; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.) Even if the issue had been preserved for appeal, Tamalpais would not prevail.

Granted, Gill was not a member of the school basketball team, but she was

trying to get on the team, and believed the open gym was a de facto tryout for the team.[18] Thus, she was working on skills to achieve that goal. Tamalpais was in plain effect advertising the class and inviting All middle school and high school girls . . . to come hoop it up under Coach Goddard. (See fn. 1, ante.) Goddard was present at the open gym sessions Gill had attended prior to November 1. The girls changed into their basketball clothes in the schools girls locker room.

Goddard was the only adult present at the open gyms. After taking an informal attendance,[19] Goddard directed the girls in stretching and running drills. Goddard would then direct the girls to go through lay-up drills and scrimmages. Goddard provided the basketballs and scrimmage jerseys used by the girls in the drills; the balls and jerseys came from what Gill characterized as a wooden storage unit close to . . . the training room. The unit was locked; Goddard had the key to it and the gymnasium. Goddard acted as the referee, and made the decisions about substituting players during the scrimmages. The girls were required to leave when Goddard left. It was Goddard who on November 1, 2001 told the girls that that days practice would not be in the gymnasium, but on the outdoor courts. And it was Goddard who, upon learning of Gills fall, told the girls that the open gym was cancelled.

At oral argument, counsel for Tamalpais tried to argue that the District had nothing to do with the girls at the open gym, who were in effect nothing more than benevolently indulged trespassers. But the evidence, viewed in Gills favor (Cassim, supra, 33 Cal.4th 780, 787), is overwhelming against this tolerant construction. The manner in which the open gym was advertised is almost, by itself, sufficient to establish sponsorship. Although Coach Goddard treated her unpaid, voluntary involvement with the open gyms as totally separate from her compensated duties at the school, the precise fiscal details do nothing to uncouple Tamalpais from responsibility. The formal sponsorship may have been the adult community education program, but it was still Tamalpaiss program, it was still being conducted on Tamalpaiss property, and it was a Tamalpais employee who was in charge. There is nothing in the record which challenges the general picture of Goddard as the person in command of the open gym sessions and directing how they were conducted. Finally, when Gill collided with the pole, it was Goddard that the other girls treated as the authority figure to whom they looked for direction.[20]

The school day may have concluded, but Tamalpaiss responsibility had not.  It can no longer be denied that extracurricular activities constitute an integral component of public education. [Citation.] They are [no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin . . . .   (Avila, supra, 38 Cal.4th 148, 159, quoting Hartzell v. Connell (1984) 35 Cal.3d 899, 909, italics added by Avila.) The duty to exercise due care in supervising students still governed school personnel. (See Kahn v. East Side Union HighSchool Dist., supra, 31 Cal.4th 990, 1017 [California authority establishes that [high school personnel] had a duty of supervision that included an obligation to offer [student athlete] some protection against her own lack of mature judgment]; Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 934 [  California law has long imposed on school authorities a duty so supervise at all times the conduct of children on school grounds and to enforce those rules and regulations necessary to their protection   ]; Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741, 747; Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459; cf. Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 [coach or sport instructor owes a duty to a student not to increase the risks . . . in the learning process undertaken by the student].)

In sum, we conclude that the trial court properly concluded the evidence was such that the issue was one of law. But even if we were not, we would conclude it is decidedly unlikely that the jury would have differed from the trial courts conclusionthat, if presented with the question, the jury would not have concluded that the open gym was sponsored by Tamalpais and was supervised by Tamalpais personnel.[21] In light of the totality of the circumstances, we conclude that the slightly unorthodox procedure adopted by the trial court qualifies as harmless. (Cal. Const., art. VI,  13.)

There Was No Prejudicial Misconduct During

Gills Final Argument

California has long accepted that it is improper for counsel to make a so-called golden rule argument to a jury, that is, for counsel to ask jurors to put themselves in the plaintiffs shoes and ask what compensation they would personally expect. (Cassim, supra, 33 Cal.4th 780, 797.) This prohibition promotes the fundamental goal of confining the jurys attention to a proper consideration of the evidence. The only person whose pain and suffering is relevant in calculating a general damage award is the plaintiff. How others would feel if placed in plaintiffs position is irrelevant. (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764-765.) The appeal to a juror to exercise his subjective judgment rather than an impartial judgment predicated on the evidence cannot be condoned. It tends to denigrate the jurors oath to well and truly try the issue and render a true verdict according to the evidence. (Code Civ. Proc.,  604.) Moreover, it in effect asks each juror to become a personal partisan advocate for the injured party, rather than an unbiased and unprejudiced weigher of the evidence. Finally, it may tend to induce each juror to consider a higher figure than he otherwise might to avoid being considered self-abasing. (Neumann v. Bishop (1976) 59 Cal.App.3d 451, 484-485.)

Tamalpais argues that the trial court overruled its objection when Gills counsel made a golden rule argument to the jury. Gill admits that there may have been a fleeting and technical breach of the rule,[22] but she argues that it was not prejudicial. The circumstances are these:

In his initial final argument, Gills counsel argued that, in addition to those already incurred, Gills future medical expenses were between $32,020 and $68,870. He then continued:

And ladies and gentlemen, that doesnt even begin to take into account the fact that its going to be, according to Dr. Finzer, a year and a half from the day of first work thats done on her mouth to when she is back to normal after the implant process.

Now, she is entitled to pain and suffering. And Dr. Berg told you that, in addition to the psychiatric counseling, she is dental phobic. That was his diagnosis; she exhibits an unusually strong fear of having to go to the dentist.

You have got the actual damages. Dr. Berg said $34,600 for counseling. You have Dr. Finzers numbers, which I just gave to you, and you have the numbers that have been established in the past. And the question then becomes, How do you deal with pain and suffering? How do you put a dollar amount on it?

Its impossible, but we have to try. Thats why youre here and thats why the attorneys are suggesting things to you. A normal case, kind of a rule of thumb, would be three times the actual damages, is what the pain and suffering is worth.

So you take the actual damages, you multiply it by three, which includesthat become the level, the dollar amount for pain and suffering. And that, ladies and gentlemen, is for a simple, easy case. Thats for the case where Jennifer runs into the pole and breaks her wrist, is taken to Marin General and they set it, they cast it, six weeks later the cast comes off, and she does physical therapy for a month. And after that, for the rest of her life, her wrist is just fine.

That is not this case. Their dental expert told you, she is looking at a lifetime of dental work because of what these people did to her. And three, a multiplier of three, ladies and gentlemen, I dont think is even close to appropriate. I think you should start with a multiplier of five. Thats where I think you should start because she is going to be living with this case until the day she dies.

Thats kind of dramatic to say, but thats true. And if you really want to know what I think the numbers should be, okay? For those of you who have kids or those of you that dont, I want you to imagine you were standing next to you 12, 13, 15-year-old child, who you love dearly.

And a guy walks up to you and says, I have got a suitcase. Its full of money, and Im going to give some to you. The deal is, Im not going to give it to you, Im going to give it to you