Lotz v. >Claremont> Club

 

 

 

 

 

 

 

 

 

Filed 8/15/13  Lotz v. Claremont Club CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
TWO

 

 
>

NICHOLAS LOTZ, a Minor, etc., et al.,               Plaintiffs and Appellants,               v.   THE CLAREMONT CLUB et al.,               Defendants and Respondents.

B242399         (Los Angeles County       Super. Ct. No. KC061412)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.  Peter J. Meeka,
Judge.  Reversed and remanded.

 

            Magaña,
Cathcart & McCarthy and Charles M. Finkel for Plaintiffs and Appellants.

 

            Manning
& Kass, Ellrod, Ramirez, Trester, Anthony J. Ellrod and David J. Wilson for
Defendants and Respondents.

 

 

 

* * * * * *

            The trial court granted summary
judgment in favor of defendants and respondents The Claremont Club (Club)
and Adam Qasem (Qasem) on the complaint brought by minor Nicholas Lotz
(Nicholas) by and through his guardian ad litem Deborah Lotz (Deborah) and
Deborah individually (sometimes collectively appellants).href="#_ftn1" name="_ftnref1" title="">^[1] 
Nicholas
was injured in a dodgeball game that took place while he was in the Club’s
childcare program.  The trial court ruled
that a release signed by Nicholas’s father barred appellants’ claims and there
was no evidence showing the Club’s conduct amounted to gross negligence beyond
the scope of the release.  It further
ruled the primary assumption of risk doctrine barred appellants’ claims.

            We reverse.  The evidence offered by appellants showed
there were triable issues of material fact regarding the scope and application
of multiple releases, whether the Club’s and Qasem’s conduct constituted href="http://www.fearnotlaw.com/">gross negligence and whether their
conduct increased the risk of harm inherent in the game of dodgeball.

FACTUAL AND
PROCEDURAL BACKGROUND

            >Club Membership.

            In 2001, Thomas Lotz (Thomas) signed
The Claremont Club Membership Agreement (Membership Agreement) and completed a
membership information form indicating that he was seeking a family membership
for himself, Deborah and their two children. 
On the information form, Thomas put a check mark by some of the
specified sports and activities in which he and his family were interested in
participating.  Dodgeball was not
included among the list of activities.

            The Membership Agreement included a
section entitled “Waiver of Liability” that provided in relevant part:  “IT IS EXPRESSLY AGREED THAT USE OF THE CLUB
FACILITIES, PARTICIPATION IN CLUB-SPONSORED OUTSIDE ACTIVITIES OR EVENTS AND
TRANSPORTATION PROVIDED BY THE CLUB SHALL BE UNDERTAKEN BY A MEMBER OR GUEST AT
HIS/HER SOLE RISK AND THE CLUB SHALL NOT BE LIABLE FOR ANY INJURIES OR ANY
DAMAGE TO ANY MEMBER OR GUEST . . . .”  The provision further stated that the member
voluntarily assumed the risk of personal injury and released the Club and its
employees from every demand, claim or liability on account of any personal
injury.

            On the same day he signed the
Membership Agreement, Thomas signed a separate document captioned Waiver of
Liability, Assumption of Risk and Indemnity Agreement (Waiver) that contained a
provision stating:  “This Agreement
constitutes my sole and only agreement respecting release, waiver of liability,
assumption of the risk, and indemnity concerning my involvement in The
Claremont Club.”  The Waiver further provided
in part:  “I, for myself, my spouse, if
any, my heirs, personal representative or assigns, and anyone claiming through
or under me do hereby release, waive, discharge, and covenant not to sue The
Claremont Club . . . for liability from any and all claims
including the negligence of the Claremont Club, resulting in damages or
personal injury . . . .” 
The Waiver further identified certain activities provided at the
Club—again excluding dodgeball—together with the risks arising therefrom, and
required Thomas to assert that his participation was voluntary and “that I
knowingly assume all such risks.”  The
Waiver’s concluding paragraph provided for Thomas’s understanding “THAT I AM
GIVING UP SUBSTANTIAL RIGHTS, INCLUDING MY RIGHT TO SUE.”

            Together with a Club attorney, Club
president and chief executive officer Mike Alpert helped prepare the Waiver.  According to Alpert, only the Waiver—not the waiver of
liability contained in the Membership Agreement—was in full force and effect at
the time Thomas signed both documents.  None of the documents that Thomas and Deborah
signed in connection with their Club membership informed them that dodgeball
would be played on Club premises.

>Nicholas Is Injured in a> Dodgeball Game at the
Club.

            The “InZone” was part of the Club’s
childcare department; it provided a clubhouse environment for older children
that included ping pong, foosball and video games. 

In-house sports and a specialized fitness room were also available as part of
the InZone.  A document provided to
parents describing InZone activities identified a number of sports in which a
child might participate; it did not mention dodgeball.

            On April 13, 2005, Deborah checked
10-year-old Nicholas into the InZone between 4:30 and 5:00 p.m.  No one advised Deborah or Thomas that Nicholas
might be playing dodgeball as part of the InZone activities.  That day, Club employee Qasem was scheduled
to work at the front desk. 
Eighteen-year-old Qasem had worked part-time at the Club for
approximately one year as a lifeguard, weight room attendant and at the front
desk.  He had never worked in the InZone
and the Club had not provided him with any training to work with children.

            At some point during his shift,
Qasem left the front desk to work in the children’s fitness room.  He was the only individual supervising
approximately eight to 15 children, including Nicholas.  One of the children suggested the group play
dodgeball, and Qasem agreed.  He took the
children to the Club’s racquetball court because he had observed dodgeball
being played there once or twice.  The
Club’s written policies, however, stated “[o]nly racquetball, handball, squash
and Wally ball may be played on the racquetball courts.”  Qasem had never played dodgeball at the Club, nor had he ever
seen any written rules concerning dodgeball.

            Though Qasem was uncertain whether
he provided the children with any rules before they began playing the game, he
may have told them to throw the ball below their waists.  During the game, anywhere from three to six
balls were being thrown at one time; each rubber ball was filled with air and
was about the size of a soccer ball.  About 20 minutes into the game, Qasem threw a
ball using a sidearm motion hard and fast toward Nicholas.  The ball hit Nicholas’s face and slammed his
head into the wall behind him, leaving tooth marks on the wall.  Nicholas suffered multiple dental injuries as
a result of being hit by the ball.

At the time of the game, Qasem was
six feet tall and weighed approximately 145 pounds.  According to Nicholas, Qasem had been playing
aggressively throughout the game.  By
playing in the game, Qasem had also violated the Club’s then unwritten policy
that supervisors not participate in dodgeball games with the children.  No one had previously been injured in a
dodgeball game at the Club.  After that game,
Qasem was disciplined for failing to follow childcare policies and procedures,
and one of his superiors instructed him not to play dodgeball at the Club.

            Nicholas had previously played
dodgeball at school.  Though the
players were instructed to not throw the ball at other players’ heads, he
understood there was some risk of being hit in the head with the ball.  The balls used at school, however, were
similar to a Nerf ball and softer than those used at the InZone.  Had Thomas and Deborah been advised that
Nicholas would be playing dodgeball on a racquetball court with rubber balls,
they would not have given their permission for him to do so.

The Intramural Rules of Dodgeball provide the game is
one in which players try to hit others with a ball and avoid being hit
themselves.  â€œThe main objective
is to eliminate all members of the opposing team by hitting them with thrown
balls, catching a ball thrown by a member of the opposing team, or forcing them
outside of the court boundaries.”  The
National Dodgeball League Rules and Regulations of Play specify that a player
committing a “headshot”—hitting another player in the head by a high thrown
ball—will be deemed out of the game.

The Pleadings and Summary
Judgment.

            In June 2011, appellants filed their
complaint alleging negligence and gross negligence and seeking general and
special damages.  They alleged
that Nicholas was injured as a result of the Club’s negligently and recklessly
“a. hiring, employing, training, entrusting, instructing, and supervising defendant
ADAM QASEM;  [¶]  b. failing to adequately [] protect children
under the care of defendant ADAM QASEM; 
[¶]  c. participating in a
game of dodge ball in an unreasonably forceful and dangerous manner so as to
endanger the health, safety and welfare of children placed by their parents
into the care of defendants.”

            In December 2011, the Club and Qasem
moved for summary judgment.  They argued
that appellants’ negligence claims were barred by Thomas’s execution of a
release and express assumption of risk, and according to the assumption of risk
doctrine.  They further argued their
actions did not rise to the level of gross negligence.  In support of their motion, they submitted
the Membership agreement, appellants’ discovery responses, deposition excerpts
and Qasem’s declaration.  They also
sought judicial notice of several principles related to dodgeball rules and
manner of play.

            Appellants opposed the motion and
filed evidentiary objections.  They argued that triable issues of material
fact existed concerning the scope of the Waiver, whether the Club’s conduct
amounted to gross negligence and whether Nicholas’s injury was the result of an
inherent risk of the game of dodgeball.  They offered
deposition excerpts, Club policies, medical records and several declarations in
support of their arguments.  Sports and
Recreational Consultants president Steve Bernheim opined that the Club “did not
take the proper measures to protect the children who were in its care, custody
and control during the dodgeball game in which Nicholas Lotz was injured.”  More specifically, the children were not
provided with game-appropriate rules, the racquetball court was an insufficient
space, use of the rubber balls was inappropriate and an adult should not have
been playing with the children.  He
further opined that Qasem acted recklessly and that his conduct, coupled with
the other conditions of the game, increased the risks inherent in the game of
dodgeball and were outside the range of ordinary activity associated with the
sport.

            The Club
replied and also filed evidentiary objections.  At a March 2012
hearing, the trial court granted the motion.  Though the trial court edited the proposed
judgment to eliminate any reasons for its ruling, at the hearing the trial
court first referred to childhood dodgeball experience as the basis for its
decision:  “When I went to school, we
called it Warball, and we didn’t use Nerf balls because there weren’t any.  It was a ball.  When it hit you, it stung.  And we all knew that.  Everybody knew it.  And it was just one of those games you played
in school, and high school for that matter.” 
Turning to the evidence, the trial court construed the Waiver to apply
to Thomas’s family members as well as Thomas, reasoning that the Club would
have expected Thomas to be executing a release on behalf of all family members
when he joined.  The trial court further
explained that even if it were to ignore the Waiver, appellants’ claims would
be barred by the assumption of risk doctrine. 
It further found that the Club’s and Qasem’s conduct did not rise to the
level of gross negligence as a matter of
law, reasoning there was no evidence that Qasem was trying to injure
Nicholas and that such an injury could have occurred in the context of any type
of sport.  It did not rule on any of the
evidentiary objections.

            Judgment
was entered in June 2012, and this appeal followed.

>DISCUSSION

            Appellants maintain that the trial
court erred in granting summary judgment and assert they offered evidence
sufficient to create triable issues of fact concerning the scope and
application of the Waiver, the existence of gross negligence and the
application of the assumption of risk defense. 
We agree that triable issues of fact preclude the granting of summary
judgment.

I.          Standard of
Review.

            We
review a grant of summary judgment de novo and independently determine whether
the facts not subject to triable dispute warrant judgment for the moving party
as a matter of law.  (>Intel Corp. v. Hamidi (2003) 30 Cal.4th
1342, 1348; Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 849–850.) 
To secure summary judgment, the moving defendant must show that one or
more elements of the cause of action cannot be established, or that there is a
complete defense to the cause of action, and that it “is entitled to judgment
as a matter of law.”  (>Aguilar v. Atlantic Richfield Co., supra,
at p. 850.)  Once that burden is
met, the burden “shifts to the [other party] to show that a triable issue of
one or more material facts exists as to that cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar
v. Atlantic Richfield Co., supra, at p. 850.)

We assume
the role of the trial court and redetermine the merits of the motion.  (Barber
v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)  “In doing so, we must strictly scrutinize the
moving party’s papers.  [Citation.]  The declarations of the party opposing
summary judgment, however, are liberally construed to determine the existence
of triable issues of fact. 
[Citation.]  All doubts as to
whether any material, triable issues of fact exist are to be resolved in favor
of the party opposing summary judgment. 
[Citation.]”  (>Ibid.; accord, Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)  “Because
a summary judgment denies the adversary party a trial, it should be granted
with caution.  [Citation.]” 
(Acosta v. Glenfed Development
Corp. (2005) 128 Cal.App.4th 1278, 1292.) 
The court’s role is to focus “on issue finding; it does not resolve
issues of fact.  The court seeks to find
contradictions in the evidence, or inferences reasonably deducible from the
evidence, which raise a triable issue of material fact.”  (Ibid.)


II.        Appellants Raised Triable Issues of Fact
as to Whether the Waiver Applied to Release Their Claims.>

            At the
hearing on the motion, the trial court indicated that one basis for its ruling
was the application of a written release. 
It stated:  “Here, dad is signing
the release on behalf of the family.  Mom
could have signed the release on behalf of the family and had a check and paid
for the membership.  And even though
there are some slight twists and turns here, I guess nothing is ever completely
crystal clear.  I think the release
really hurts the plaintiff or plaintiffs here.”  Though the trial court’s comments fail to
demonstrate whether it relied on the Membership Agreement or the Waiver as
providing the operative release, the Club argues on appeal that the release
contained in the Membership Agreement was clear and unambiguous, and applied to
release appellants’
claims.

       “California
courts require a high degree of clarity and specificity in a [r]elease in order
to find that it relieves a party from liability for its own negligence.”  (Cohen
v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488 (Cohen).)  Thus, “to be effective, an agreement which
purports to release, indemnify or exculpate the party who prepared it from
liability for that party’s own negligence or tortious conduct must be clear,
explicit and comprehensible in each of its essential details.  Such an agreement, read as a whole, must
clearly notify the prospective releaser or indemnitor of the effect of signing
the agreement.”  (Ferrell v. Southern Nevada Off-Road Enthusiasts, Ltd. (1983) 147
Cal.App.3d 309, 318.)  Waiver and release
forms are strictly construed against the defendant.  (Lund
v. Bally’s Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 738.)  But “a release need not achieve perfection”
to be effective.  (National & Internat. Brotherhood of Street Racers, Inc. v. Superior
Court (1989) 215 Cal.App.3d 934, 938.) 
A release is sufficient if it “‘constitutes a clear and unequivocal
waiver with specific reference to a defendant’s negligence.’”  (Paralift,
Inc. v. Superior Court (1993) 23 Cal.App.4th 748, 755.)

       Here, Thomas represented in his
membership application that he sought Club membership on behalf of his family.
 The release contained
in the Membership Agreement provided that the member and guests assumed the
risk of Club activities and released the Club from liability for participation
in Club activities.  A contract
in which a party expressly assumes a risk of injury is, if applicable, a
complete defense to a negligence action. 
(See Knight v. Jewett (1992) 3
Cal.4th 296, 308, fn. 4 (Knight); >Sweat v. Big Time Auto Racing, Inc. (2004)
117 Cal.App.4th 1301, 1304.)  Moreover,
it is well settled a parent may execute a release on behalf of his or her
child.  (Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th
1112, 1120 (Aaris); >Hohe v. San Diego Unified Sch. Dist. (1990)
224 Cal.App.3d 1559, 1565.)  By offering
evidence of the Membership Agreement, the Club met its threshold burden to
demonstrate a complete defense to appellants’ negligence claims.

       In contrast to the trial court, however,
we conclude the evidence offered by appellants showing that the release was not
“crystal clear” satisfied their burden to demonstrate triable issues of
material fact.  As summarized in Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1357:  “The determination
of whether a release contains ambiguities is a matter of contractual
construction.  [Citation.]  ‘An ambiguity exists when a party can
identify an alternative, semantically reasonable, candidate of meaning of a
writing.  [Citations.]  An ambiguity can be patent, arising from the
face of the writing, or latent, based on extrinsic evidence.’  [Citation.] 
The circumstances under which a release is executed can give rise to an
ambiguity that is not apparent on the face of the release.  [Citation.] 
If an ambiguity as to the scope of the release exists, it should
normally be construed against the drafter. 
[Citations.]”

            Here,
appellants demonstrated an ambiguity by offering evidence that the Waiver—not
the Membership Agreement—contained the operative release.  The Waiver contained language effectively
negating any other release, providing:  “This Agreement constitutes
my sole and only agreement respecting release, waiver of liability, assumption
of the risk, and indemnity concerning my involvement in The Claremont
Club.  Any prior written or oral
agreements, promises, representations concerning the subject matter contained
in this Agreement and not expressly set forth in this Agreement have no force
or effect.”  Club president Alpert
testified that only the Waiver was the operative agreement at the time Thomas
joined the Club.  The Waiver, however,
inconsistently provided in one paragraph that Thomas was giving up his right to
sue on behalf of his spouse and heirs, and in another paragraph that he was
relinquishing only his personal right to sue. 
Other language in the Waiver that “I hereby assert that my participation
is voluntary and that I knowingly assume all such risks” likewise suggested
that the Waiver was intended to be personal only.  Given appellants’ identification of an “alternative,
semantically reasonable” construction of the Waiver, the evidence created a
triable issue of fact concerning whether and to what extent the Waiver applied
to appellants’ claims.  (See >Solis v. Kirkwood Resort Co. (2001) 94
Cal.App.4th 354, 360.)

            Beyond
the issue of whether the Waiver or the Membership Agreement contained the
operative release, appellants demonstrated a triable issue of fact as to
whether the language of either document contemplated the type of injuries
suffered by Nicholas.  Both the
Membership Agreement and the Waiver released the Club from liability for
personal injury from Club activities.  â€œâ€˜Where
a participant in an activity has expressly released the defendant from
responsibility for the consequences of any act of negligence, “the law imposes
no requirement that [the participant] have had a specific knowledge of the
particular risk which resulted in his death [or injury.]” . . . 
Not every possible specific act of negligence by the defendant must be spelled
out in the agreement or discussed by the parties. . . .  Where a release of all liability for >any act of negligence is given, the
release applies to any such negligent act, whatever it may have
been. . . .  “It is
only necessary that the act of negligence, which results in injury to the
releasor, be reasonably related to the object or purpose for which the release
is given.”’  [Citation.]”  (Leon
v. Family Fitness Center (#107), >Inc. (1998) 61 Cal.App.4th 1227,
1234–1235 (Leon).)href="#_ftn2" name="_ftnref2" title="">^[2]> 

            Appellants
offered evidence creating a triable issue of fact as to whether an injury from
a child playing dodgeball was sufficiently related to the purpose of the
release.  Neither Thomas nor Deborah were ever
informed that Nicholas would be playing dodgeball at the Club.  Dodgeball was not
identified as a Club activity in any of the Club materials.  It was not listed as an activity in either
the Membership Agreement or the Waiver.  It did not
appear on the list of Club activities in the membership information form.  According to the Club’s written policies, it
was not among the activities permitted to be played on the Club’s racquetball
courts.  Likewise, the Club
maintained a policy to preclude supervisors from engaging in dodgeball games
with children.

       These
circumstances are analogous to those in Cohen,
supra, 159 Cal.App.4th 1476.  There,
the plaintiff was injured during a horseback ride when the guide unexpectedly
caused his horse to gallop, knowing that it would cause the horses following to
do the same, and the plaintiff was unable to control her galloping horse.  (Id.
at p. 1480.)  Before riding, the
plaintiff had signed a release that described some but not all of the risks
inherent in horseback riding and provided that she agreed “‘to
assume responsibility for the risks identified herein and those risks
not specifically identified.’ 
(Italics added.)”  (>Id. at p. 1486.)  Finding this language unambiguous, the trial
court granted summary judgment.  (>Id. at pp. 1482–1483.)  The appellate court reversed, reasoning the
exculpatory provision was problematic, as “[t]he ‘risks not specifically
identified’ could refer to the risks inherent in horseback riding left
unidentified by the phrase ‘some, but not all,’ which seems to us the most
reasonable assumption, but it might also refer to risks arising out of
respondent’s negligence that increase[] the inherent risks.”  (Id.
at p. 1486.)  Stated another way, the
court explained that “[t]he Release presented to appellant clearly does not
unambiguously, let alone explicitly, release respondent from liability for
injuries caused by its negligence or that of its agents and employees which
increase a risk inherent in horseback riding.” 
(Id. at p. 1488.)

       At a minimum, appellants’ evidence that
dodgeball was an undisclosed risk and an activity contrary to the Club’s
written policies raised a triable issue of fact as to whether it was a risk
that was reasonably name="SR;6638">related to the name="SR;6641">purpose for which any name="SR;6645">release was given.  Evidence of Qasem’s conduct likewise raised a
triable issue of fact as to whether such a risk was encompassed by the
Waiver.  (See Cohen, supra, 159 Cal.App.4th at p. 1489 [“Nothing in the Release
clearly, unambiguously, and explicitly indicates that it applies to risks and
dangers attributable to respondent’s
negligence or that of an employee that may not be inherent in supervised
recreational trail riding,” italics omitted]; see also Sweat v. Big Time Auto Racing, Inc., supra, 117 Cal.App.4th at p.
1308 [release in favor of racetrack owner for injuries suffered while in a
racetrack’s restricted area did not apply to injuries sustained after
defectively constructed bleachers collapsed]; Leon, supra, 61 Cal.App.4th at p. 1235 [release that allowed the
plaintiff to engage in fitness activities at a health club did not apply to
injuries from a collapsed sauna bench].)

       On the other hand, the circumstances here
bear no similarity to those in Aaris,
supra, 64 Cal.App.4th 1112, a case on which the Club relies.  There, the court found that a high school
cheerleader and her family assumed the risk of injuries resulting from
cheerleading activities.  On the basis of
that finding, the court also affirmed summary judgment on the ground that a
release of liability for school activities barred any claim for injuries.  The court reasoned that the assumption of
risk doctrine “embodies the legal conclusion that defendant owed no duty to
protect appellant from the risk of harm inherent in the athletic activity.  [Citation.] 
There being no duty, there was no negligence.”  (Id. at
p. 1120.)  Ignoring that the >Aaris court’s holding was based on a
finding of no negligence rather than any application of the release, the Club
emphasizes that the release applied notwithstanding its failure to specify
“cheerleading,” and argues that the Membership Agreement’s and Waiver’s
references to Club activities must therefore similarly be construed to
encompass dodgeball.  But in >Aaris, the only reasonable inference to
be drawn from the evidence was that the sole purpose of the release was to address
injuries resulting from cheerleading. 
Here, Thomas and Deborah did not even know that Nicholas would be
participating in a dodgeball game. 
Moreover, the trial court in Aaris
ruled that the undisputed evidence showed “‘that the instructor did not increase
the risk of harm inherent in the activity, the participants received adequate
and proper[] training in technique and safety, and they were properly and
reasonably supervised.’”  (>Id. at p. 1117.)  In sharp contrast, appellants’ evidence
showed that Qasem should not have been playing dodgeball and played
aggressively, he violated the Club’s written policy concerning use of the
racquetball court and no one else was supervising the game.

       Finally, appellants offered evidence to
show that the InZone was part of the Club’s childcare department.  On the day of the dodgeball game, Deborah
signed Nicholas in to the Club’s InZone program.  Club wellness director Denise Johnson
testified that she was aware children played dodgeball on the racquetball
courts while being supervised under the childcare department.  To the extent that the Club’s Membership
Agreement or Waiver purported to release it from liability for injuries
occurring in its childcare program, appellants raised a triable issue of fact
as to whether such an agreement would be void against public policy.  (Gavin
W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662, 676 [“we
hold that exculpatory agreements that purport to relieve child care providers
of liability for their own negligence are void as against public policy”].)

       In sum, the evidence offered on summary
judgment demonstrated that the Membership Agreement and/or the Waiver did not
clearly and explicitly release the Club from liability for Nicholas’s
injuries.  In view of the ambiguities
concerning whether the Membership Agreement or the Waiver applied, whether the
language in either document was sufficient to cover the Club’s conduct and
whether any release violated public policy, a trier of fact could find that the
Club was not released from liability. 
(See Zipusch v. LA Workout, Inc. (2007)
155 Cal.App.4th 1281, 1288 [“if a release is ambiguousname="SR;5360">, and it is not clear the parties contemplated
redistributing the risk causing the plaintiff’s injury, then the contractual
ambiguity should be construed against the draftername="SR;5385">, voiding the purported release”].)  The undisputed evidence failed to show the
Club and Qasem were absolved from liability as a matter of law according to the
Membership Agreement or the Waiver.

III.       Appellants Raised Triable Issues of Fact
Whether the Club Was Liable for Gross Negligence.

                In
City of Santa Barbara v. Superior Court (2007)
41 Cal.4th 747, 751 (Santa Barbara),
our State’s highest court held “that an agreement made in the context of
sports or recreational programs or services, purporting to release liability
for future gross negligence, generally is unenforceable as a matter of public
policy.”  Relying on Santa Barbara, appellants opposed the
Club’s summary judgment motion on the alternative ground that, even if the
Club’s most comprehensive release language was unambiguous, there was a triable
issue of fact as to whether the Club’s conduct amounted to gross
negligence.  The trial court ruled:  “It is not gross negligence.  He wasn’t trying to injure the child on
purpose, any more than a child would be injured playing hockey or soccer, or
anything like that.”  Again, we disagree.

            California
courts define “‘gross negligence’” “as either a
‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary
standard of conduct.’”’ 
[Citations.]”  (>Santa Barbara, supra, 41 Cal.4th at p.
754; accord, Eriksson v. Nunnink (2011)
191 Cal.App.4th 826, 857.)  Gross
negligence “connotes such a lack of care as may be presumed to indicate a
passive and indifferent attitude toward results.”  (Calvillo-Silva
v. Home Grocery (1998) 19 Cal.4th 714, 729, disapproved on other grounds in
Aguilar v. Atlantic Richfield Co., supra,
25 Cal.4th at p. 853, fn. 19.)  In
contrast to willful misconduct, gross negligence does not require an intent to
do harm or to act with absolute disregard of the consequences.  (Meek
v. Fowler (1935) 3 Cal.2d 420, 425; see also Hawaiian Pineapple Co. v. Ind. Acc. Com. (1953) 40 Cal.2d 656, 662
[“While gross negligence may involve an intent to perform the act or omission,
wilful misconduct involves the further intent that the performance be harmful
or that it be done with a positive, active and absolute disregard of the
consequences”].)  Though not always, “[g]enerally
it is a triable issue of fact whether there has been such a lack of care as to
constitute gross negligence. 
[Citations.]”  (>Decker v. City of Imperial Beach (1989)
209 Cal.App.3d 349, 358; accord, Santa
Barbara, supra, at pp. 767, 781.)

            Appellants
offered sufficient evidence to create a triable issue of fact as to whether the
Club’s and Qasem’s conduct amounted to gross negligence.  According to the undisputed evidence, while
the Club’s policies prohibited dodgeball being played on the racquetball
courts, Club employees—including the childcare director—knew the courts were
used for children’s dodgeball games.  Nonetheless, none of the Club’s materials
identified dodgeball as an available activity. 
Consistent with the Club’s failure to acknowledge dodgeball as an
ongoing activity, it failed to promulgate rules to insure the game was played
safely.  When Nicholas was dropped off at
the InZone program, no one advised his parents that he might play
dodgeball.  In this particular instance,
children initiated a dodgeball game while being supervised by an 18-year-old
front desk clerk who had no childcare training. 
Qasem selected inflated rubber balls for the game and participated
aggressively in the game with the children, even though the Club’s policy was
that supervisors not play dodgeball. 
Nicholas was injured after Qasem threw the ball extremely hard and
extremely fast, using a sidearm motion.

            On the basis of this evidence,
appellants offered Bernheim’s expert opinion that “the injury to Nicholas Lotz
occurred during an extreme departure from what must be considered as the
ordinary standard of conduct when children are playing dodgeball and are
supposed to be . . . supervised.”  We agree that appellants’ evidence was
sufficient to raise a triable issue of fact as to whether the Club’s and
Qasem’s conduct was an extreme departure from ordinary care or, at a minimum,
demonstrated passivity and indifference toward results.  A trier of fact could find gross negligence
on the basis of the Club’s failure to address the repeated violation of its own
policy prohibiting dodgeball play on the racquetball courts, failure to
implement rules or policies designed to protect those playing dodgeball and
failure to provide any training to individuals assigned to supervise the
children in its childcare program. 
Triable issues existed as to whether the Club’s and Qasem’s conduct was
grossly negligent and therefore outside the scope of any release in either the
Membership Agreement or the Waiver.

IV.       Appellants Raised Triable Issues of Fact
Whether the Assumption of Risk Doctrine Barred Liability.

            As a further basis for granting
summary judgment, the trial court determined that the Club met its burden to
show the primary assumption of risk doctrine was a viable defense and that
appellants failed to offer any effective rebuttal.  It analogized the circumstances here to those
in a previous case in which it found the doctrine barred recovery to a high
school student injured during a soccer game. 
We fail to see the analogy.

            “Primary
assumption of risk occurs where a plaintiff voluntarily participates in a
sporting event or activity involving certain inherent risks.  For example, an errantly thrown ball in
baseball or a carelessly extended elbow in basketball are considered inherent
risks of those respective sports. 
[Citation.]  Primary assumption of
risk is a complete bar to recovery. 
[Citation.]  [¶]name=B111994192818>  Primary assumption of risk is merely another
way of saying no duty of care is owed as to risks inherent in a given sport or
activity.  The overriding name="sp_4041_752">name="citeas((Cite_as:_28_Cal.App.4th_746,_*75">consideration in the
application of this principle is to avoid imposing a duty which might chill
vigorous participation in the sport and thereby alter its fundamental
nature.  [Citation.]”  (Wattenbarger
v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751–752, citing >Knight, supra, 3 Cal.4th 296.)  “Knight
however does not grant unbridled legal immunity to all defendants participating
in sporting activity.  The Supreme Court
has stated that ‘. . . 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. 315–316, italics added.)  Thus, even though ‘defendants generally have
no legal duty to eliminate (or protect a plaintiff against) risks inherent in
the sport itself,’ they may not increase the likelihood of injury above that
which is inherent.  (Id. at p. 315.)”  (>Campbell v. Derylo (1999) 75 Cal.App.4th
823, 827.)  Thus, “when the plaintiff
claims the defendant’s conduct increased the inherent risks of a sport, summary
judgment on primary assumption of risk grounds is unavailable unless the
defendant disproves the theory or establishes a lack of causation.  [Citations.]” 
(Huff v. Wilkins (2006) 138
Cal.App.4th 732, 740.)

            Much of
appellants’ evidence that we deemed sufficient to
raise a triable issue of fact on the question of gross negligence likewise
created a triable issue as to whether the Club and Qasem increased the risk of
harm inherent in the game of dodgeball.href="#_ftn3" name="_ftnref3" title="">^[3] 
Certainly, being hit by a ball is one of the objectives of and hence an
inherent risk in the game of dodgeball.  But appellants’ evidence tended to show that
the Club and Qasem increased that risk in a number of ways, including by
playing on an enclosed racquetball court which was neither intended nor
permitted to be used for dodgeball; by selecting rubber balls for the game; by
allowing an adult untrained in childcare not only to participate in the game
with the children but also to abdicate any supervisory role over them during
the game; and by enabling that adult to play aggressively with the
children.  Given the totality of the
circumstances, we cannot say, as a matter of law, that Nicholas assumed the
risk of being hit in the head with a ball.

            Other courts have
similarly reversed a grant of summary judgment where the plaintiff’s evidence
raised a triable issue of fact as to whether the defendant’s conduct increased
the inherent risks in a sport or other recreational activity.  Lowe v.
California League of Prof. Baseball (1997) 56 Cal.App.4th 112 is
particularly instructive.  There, the
plaintiff filed suit after he was injured by a foul ball while watching a
baseball game, and the trial court granted summary judgment, finding the doctrine
of primary assumption of risk barred his claims.  (Id.
at p. 120.)  In reversing, the appellate
court relied on evidence showing the plaintiff was hit when he turned toward a
team mascot who had repeatedly tapped his shoulder.  (Id.
at pp. 117–118, 123.)  The court explained
that while foul balls represent an inherent risk to spectators attending a
baseball game, “we hold that the antics of the
mascot are not an essential or integral part of the playing of a baseball
game.  In short, the game can be played
in the absence of such antics.  Moreover,
whether such antics increased the inherent risk to plaintiff is an issue of
fact to be resolved at trial.”  (>Id. at p. 123; see also >Vine v. Bear Valley Ski Co. (2004) 118
Cal.App.4th 577, 591 [though skiers assume the risk of injury from the sport,
triable issue of fact existed whether ski resort’s jump design increased the
risk of harm]; Morgan v. Fuji Country
USA, Inc. (1995) 34 Cal.App.4th 127, 134 [while a golfer assumes the risk
of being hit by a golf ball, golf course owner owes a duty to minimize that
risk, and the plaintiff raised a triable issue of fact as to whether that duty
was breached where evidence showed the design of certain holes may have
increased that risk].)

            We find no
merit to the Club’s and Qasem’s argument that appellants’ evidence demonstrated
merely that their conduct may have increased the severity of Nicholas’s
injuries as opposed to increasing the risk of injury.  In Calhoon
v. Lewis (2000) 81 Cal.App.4th 108, the plaintiff suffered injury when he
fell off his skateboard and hit a metal pipe protruding from a planter in the
defendants’ driveway.  Finding the
primary assumption of risk doctrine barred his claims, the court rejected the
plaintiff’s argument that the concealed metal pipe increased his risk of
harm:  “[The plaintiff] was
injured because he fell.  As [he]
concedes, falling is an inherent risk of skateboarding, and the presence of the
pipe or the planter had nothing to do with his falling down.  The fact that [his] injuries were more severe
than they would have been if the pipe had not been in the planter does not make
the assumption of risk doctrine inapplicable. 
The Knight exception applies
when the defendant increased the risk of injury beyond that inherent in
the sport, not when the defendant’s conduct may have
increased the name="SR;3560">severity of the name="SR;3563">injury suffered.”  (>Id. at p. 116.)  Here, in contrast, appellants’ evidence
showed that the Club and Qasem increased the risk of injury by initiating the
dodgeball game in which Nicholas participated. 
This was not the type of situation where Nicholas would have been
playing dodgeball absent the Club’s and Qasem’s involvement.  Moreover, the evidence raised a triable issue
of fact as to whether the Club and Qasem increased the risk of injury by
permitting dodgeball play on the racquetball court, by failing to adopt rules
for safe play, by Qasem’s failing to act as a supervisor during the game, by
his selecting rubber balls for the game and by his participating aggressively
in the game.  The Club and Qasem were not
entitled to summary judgment on the ground the primary assumption of risk
doctrine barred appellants’ claims.

>DISPOSITION

            The
judgment is reversed and the matter is remanded with directions for the trial
court to vacate its order granting summary judgment and to enter a new order
denying summary judgment.  Appellants are
entitled to their costs
on appeal.

            NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS.

 

_____________________, J. href="#_ftn4" name="_ftnref4" title="">^*

    FERNS

We concur:

 

 

____________________________,
Acting P. J.

            ASHMANN-GERST

 

____________________________,
J.

            CHAVEZ