Filed 9/23/26 Yzaguirre v. Clovis Unified School District CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
JOSEPH T. YZAGUIRRE, a Minor, etc., et al.,
F090476
Plaintiffs and Appellants,
(Super. Ct. No. 23CECG00847)
v.
CLOVIS UNIFIED SCHOOL DISTRICT et al.,
OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Fresno County. D. Tyler
Tharpe, Judge.
Miles, Sears & Eanni, Lyndsie N. Russell, for Plaintiffs and Appellants.
DeMaria Law Firm, Anthony N. DeMaria, for Defendants and Respondents.
-ooOoo-
A 12-year-old student injured his wrist during a physical education class devoted
to the game of basketball. The injury occurred when his attempt to shoot a basket was
contested and blocked by an adult instructor. The student sued the instructor and the
school district, asserting claims based on theories of negligence, intentional tort liability,
and respondeat superior. A jury returned defense verdicts on all causes of action.
This appeal concerns the primary assumption of the risk doctrine. “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.” (Avila v. Citrus Community College Dist. (2006)
38 Cal.4th 148, 161, fn. omitted.)
Two issues are presented. The first is whether primary assumption of the risk was
a viable defense given the context of a curricular, rather than extracurricular, sporting
activity. If so, was the jury properly instructed on the law? We answer yes to both
questions. The judgment will therefore be affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Procedural History
Plaintiff and appellant Joseph Yzaguirre (plaintiff), by and through a guardian ad
litem, filed a civil complaint against defendants and respondents Clovis Unified School
District (CUSD) and Phil King (collectively defendants). Causes of action were asserted
against defendant King for assault, battery, and negligence. CUSD was alleged to be
vicariously liable for King’s actions under principles of respondeat superior. (See Gov.
Code, § 815.2.) A separate cause of action was asserted against CUSD for negligent
hiring, supervision, and/or retention of King as a CUSD employee.
The claims of assault and negligent hiring/supervision/retention were eventually
dismissed. A jury trial on the remaining causes of action began on June 16, 2025, and
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concluded on July 1, 2025. Defendants prevailed on all issues. Plaintiff unsuccessfully
moved for a new trial before filing a notice of appeal in September 2025.
Trial Evidence
Plaintiff was a seventh-grade student at a CUSD intermediate school during the
Fall semester of 2022. The school had extracurricular basketball programs, and plaintiff
was a member of the junior varsity (JV) team. Plaintiff also played basketball on a
separate “travel team” outside of school.
In accordance with Education Code sections 51220 and 51222, the school required
its students to take a physical education (PE) class. Apart from providing a general PE
course, the school had classes exclusively devoted to sports such as basketball,
cheerleading, and football. Those specialized classes could be taken in lieu of general
PE, but they were not available to all students.
One alternative to general PE was a class referred to by all witnesses as
“Basketball PE.” The instructors were defendant King and a nonlitigant, Adrian Wiggins
(Coach Wiggins). Coach Wiggins was also the head coach of the varsity basketball team
of a CUSD high school located in the same “educational complex” (basically the same
campus) as plaintiff’s intermediate school. King was an assistant coach of the high
school’s varsity team and head coach of its JV team, and he also coached basketball at
plaintiff’s intermediate school.
Enrollment in Basketball PE was optional and voluntary, but it was restricted to
students who received permission from their guidance counselor and Coach Wiggins or
defendant King. The instructors “vetted” interested students for a minimum “level of
proficiency,” commitment, and overall suitability. The class was reserved for members
of the school’s JV and varsity teams, and for students who wanted to join one of those
teams.
Plaintiff testified to seeking and obtaining permission to take Basketball PE from
his guidance counselor and either Coach Wiggins or defendant King (he could not recall
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which coach approved him). Plaintiff was in the class on December 23, 2022, when the
subject incident occurred. The session began with “free time,” during which plaintiff
engaged in a shootaround with classmates G.V. and D.S.
In plaintiff’s version of events, he was in the act of shooting a basketball when
defendant King suddenly approached him from his “blind side … and karate-chopped
[his] arm while trying to block [the] shot.” Plaintiff emphasized, “[defendant] King was
not playing with us, he just came out of nowhere.” Plaintiff’s counsel had used the
phrase “karate chopped” in the initial pleading, and plaintiff repeated those words
multiple times on the witness stand. For example, “I’m not sure he touched the ball. All
I know is he karate-chopped my arm.”
Defendant King’s testimony described a different scenario. He recalled being
face-to-face with plaintiff as plaintiff was standing in a “triple threat position” (meaning
poised to either shoot, pass, or dribble the basketball). Next, plaintiff “took maybe two or
three dribbles to his right.” King responded by “laterally side[-]stepping with [his] hands
up and out,” maintaining a defensive posture that he and Coach Wiggins taught to their
players and students. When plaintiff stopped dribbling and got “[s]et to shoot the ball,”
King extended his left hand to “contest the shot.”
Plaintiff “shot the ball from pretty low,” and defendant King blocked it with his
outstretched hand. According to King’s testimony, the ball “kind of jammed and
pinned,” i.e., “wedged, and then rolled back.” The defense theory, which was supported
by expert testimony, was that the wedging caused plaintiff’s shooting hand to extend
backwards.
Eyewitnesses G.V. and D.S. testified during plaintiff’s case-in-chief. On direct
examination, G.V. generally recounted seeing plaintiff “trying to shoot the ball and
[defendant] King trying to block him.” Defendant King had swung his hand downward,
but “it didn’t look like a lot of force when he was trying to hit him.” On
cross-examination, G.V. largely corroborated King’s version of events. King was
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initially guarding plaintiff “face to face” and had not suddenly appeared “from the side”
as plaintiff claimed. When plaintiff dribbled forward, King moved with him defensively.
G.V. further acknowledged, when shown his prior deposition testimony, that King made
contact with the ball when he blocked the shot.
D.S.’s testimony was more supportive of plaintiff’s story. He recalled that
defendant King had “approached [more from] the blind side.” King “swung to try to hit
the ball and he hit [plaintiff’s] wrists.” The trial transcript does not clearly indicate
King’s location, as described by D.S., when he blocked the shot. When defense counsel
asked about the karate-chop allegation, D.S. testified, “It was more like a little bit, but not
full karate chopping.” He was then reminded of prior deposition testimony in which he
had denied perceiving King’s block as a karate chop.
Whatever the mechanism of injury, there was no dispute that defendant King’s
actions resulted in plaintiff suffering a broken wrist. A medical expert described the
injury in lay terms: “I saw a fracture of the radius, which is the bone closer to your
thumb. And I saw a small fracture of the ulnar styloid, which is a tiny little bone on the
pinky side of your wrist.” The same expert, a board-certified radiologist, described the
breaks on opposite sides of the wrist as “absolutely textbook typical” of injuries caused
by a backwards extension of the hand. Such injuries commonly occur when people
extend their hands outward to break a fall.
A biomechanical engineer retained by plaintiff opined that his injury was most
likely caused by the hand being “bent forward in what’s called flexion.” However, her
testimony did not address whether the injury could have been caused in the manner
described by plaintiff, i.e., a direct blow to the wrist. Two defense experts, including the
radiologist, strongly disagreed with the flexion theory.
Verdicts
Over plaintiff’s objections, the trial court allowed defendants to assert the defense
of primary assumption of the risk. The jury was instructed that plaintiff needed to show
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defendant King either (1) intended to cause plaintiff’s injuries or (2) “acted recklessly in
that his conduct was entirely outside the range of ordinary activity involved in coaching
or instructing the sport of basketball.” There were no instructions on ordinary negligence
principles.
A special verdict form included the following question: “Did [defendant] King
intend to cause Joseph Yzaguirre injury or act recklessly in that his conduct was entirely
outside the range of ordinary activity involved in coaching or instructing the sport of
basketball in which Joseph Yzaguirre was participating?” By a vote of nine to three, the
jury answered “No.” A separate question pertained to the battery claim: “Did
[defendant] King touch Joseph Yzaguirre with the intent to harm him or cause Joseph
Yzaguirre to be touched with the intent to harm him?” The jury was unanimous in
answering this question “No.”
DISCUSSION
Plaintiff challenges the jury’s verdict on the question of negligence liability; the
battery cause of action is not at issue. Plaintiff contends the defense of primary
assumption of the risk was inapplicable as a matter of law. Alternatively, he claims the
trial court made an instructional error. We will provide an overview of relevant legal
principles before addressing and rejecting the first argument. We will then explain why
the claim of instructional error also fails.
Legal Overview
“Generally, one owes a duty of ordinary care not to cause an unreasonable risk of
harm to others.” (Shin v. Ahn (2007) 42 Cal.4th 482, 488; see Civ. Code, § 1714,
subd. (a).) The existence of such a duty, a breach thereof, and proximate causation of
harm are the essential elements of negligence liability. (Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 629.) “Whether a duty of care is owed in a particular context
depends on considerations of public policy, viewed in light of the nature of the activity
and the relationship of the parties to the activity.” (Gregory v. Cott (2014) 59 Cal.4th
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996, 1001–1002; see Shin, at p. 488 [“The existence of a duty is not an immutable fact of
nature, but rather an expression of policy considerations providing legal protection”].)
Prior to 1975, a plaintiff’s contributory negligence barred recovery against a
tortfeasor who would have otherwise been liable for breaching a duty of care. In Li v.
Yellow Cab Co. (1975) 13 Cal.3d 804, the California Supreme Court “abolished the
contributory negligence defense and replaced it with ‘a system of “pure” comparative
negligence’ that ‘assess[es] liability in proportion to negligence.’ Under that system, …
‘liability for damage will be borne by those whose negligence caused it in direct
proportion to their respective fault.’ ” (B.B. v. County of Los Angeles (2020) 10 Cal.5th
1, 14, quoting Li at pp. 813, 829.)
In the seminal case of Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), the high
court considered whether the common law “ ‘assumption of risk’ ” doctrine remained
viable under the comparative fault system. (Id. at pp. 299–300.) The opinion
“distinguished between (1) primary assumption of risk--‘those instances in which the
assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the
part of the defendant to protect the plaintiff from a particular risk’--and (2) secondary
assumption of risk--‘those instances in which the defendant does owe a duty of care to
the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the
defendant’s breach of that duty.’ ” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–
1068, citing and quoting Knight, at pp. 308, 314–315.)
In short, primary assumption of the risk “is a defense that relieves a defendant of
any duty to the plaintiff when the plaintiff is injured due to a risk that is inherent in an
activity in which the plaintiff chose to participate.” (Swigart v. Bruno (2017)
13 Cal.App.5th 529, 537.) If applicable, the defense “completely bars the plaintiff’s
recovery.” (Cheong v. Antablin, supra, 16 Cal.4th at p. 1068.) “The doctrine of
secondary assumption of risk, by contrast, ‘is merged into the comparative fault scheme,
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and the trier of fact, in apportioning the loss resulting from the injury, may consider the
relative responsibility of the parties.’ ” (Ibid., quoting Knight, supra, 3 Cal.4th at p. 315.)
The Knight case arose from “an informal game of touch football” between
attendees of a Super Bowl watch party. (Knight, supra, 3 Cal.4th at p. 300.) One of the
partygoers was seriously injured when another person stepped on her hand during a play.
(Id. at pp. 300–301.) A plurality of Supreme Court justices concluded that the injured
player’s negligence lawsuit was properly dismissed on summary judgment. The plurality
held “that a participant in an active sport breaches a legal duty of care to other
participants--i.e., engages in conduct that properly may subject him or her to financial
liability--only if the participant intentionally injures another player or engages in conduct
that is so reckless as to be totally outside the range of the ordinary activity involved in the
sport.” (Id. at p. 320, fn. omitted.)
Although Knight was a plurality opinion, its holding was later adopted by the
majority opinions in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532 and
Cheong v. Antablin, supra, 16 Cal.4th 1063. Subsequently, in Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990 (Kahn), the Knight principles were recognized
as applicable not only to coparticipants in a sporting activity, but also to coaches and
instructors. (Id. at pp. 996, 1011.) Furthermore, “the sporting activity in question need
not be part of a competitive matchup. It may involve practice for the sport.” (Shelly v.
Stepp (1998) 62 Cal.App.4th 1288, 1294; see Kahn, at p. 1006.)
“The primary assumption of risk doctrine rests on a straightforward policy
foundation: the need to avoid chilling vigorous participation in or sponsorship of
recreational activities by imposing a tort duty to eliminate or reduce the risks of harm
inherent in those activities.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156.)
Many sports are inherently dangerous or involve inherent risks of injury. (Kahn, supra,
31 Cal.4th at p. 1003.) “Imposing a duty to mitigate those inherent dangers could alter
the nature of the activity or inhibit vigorous participation.” (Ibid.) Accordingly, “the
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object to be served by the doctrine … 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.” (Id. at p. 1011.)
Consistent with the above-stated policy objectives, “the duty owed by a sports
instructor or coach of a school athletic team is reduced,” i.e., is lower than the ordinary
negligence standard, “in light of the risk of harm inherent in the sport.” (Srouy v. San
Diego Unified School Dist. (2022) 75 Cal.App.5th 548, 567, citing Kahn, supra,
31 Cal.4th at pp. 1006–1007.) “[A] sports instructor or coach ‘[does] not have a duty to
eliminate the risks presented by a sport’ nor to ‘eliminate all the risks presented by
inexperience’ [citation], but ‘[does] have a duty to the student not to increase the risk
inherent in learning, practicing, or performing in the sport.’ ” (Srouy, at p. 567.) “Thus,
a sports instructor or coach cannot be held liable unless it is alleged and proved ‘that the
instructor acted with intent to cause a student’s injury or that the instructor acted
recklessly in the sense that the instructor’s conduct was “totally outside the range of the
ordinary activity” [citation] involved in teaching or coaching the sport.’ ” (Ibid., quoting
Kahn, at p. 1011.)
Standard of Review
All claims in this appeal are subject to independent review without deference to
the trial court’s rulings. “The central issue here is whether the trial court erred in finding
that the primary assumption of risk doctrine applied. ‘The existence and scope of a
defendant’s duty of care in the context of primary assumption of the risk is a legal
question to be decided by the court’ and therefore reviewed de novo.” (Harry v. Ring the
Alarm, LLC (2019) 34 Cal.App.5th 749, 758; see Cabral v. Ralphs Grocery Co. (2011)
51 Cal.4th 764, 770 [“Duty is a question of law for the court, to be reviewed de novo on
appeal”].) The correctness of jury instructions is also a question of law that is reviewed
de novo. (People v. Parker (2022) 13 Cal.5th 1, 68; Harry, at p. 758.)
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I. Primary Assumption of the Risk Was a Viable Defense
California courts have long recognized a duty owed by “school authorities to
supervise at all times the conduct of the children on the school grounds and to enforce
those rules and regulations necessary to their protection.” (Taylor v. Oakland Scavenger
Co. (1941) 17 Cal.2d 594, 600.) This duty of supervision, which is embodied in
Education Code section 44807 (section 44807), “extends to athletic practice and play.”
(Avila v. Citrus Community College Dist., supra, 38 Cal.4th at p. 158.) Section 44807
does not, however, foreclose application of the primary assumption of risk doctrine. One
of the first cases to reach that conclusion was Lilley v. Elk Grove Unified School Dist.
(1998) 68 Cal.App.4th 939 (Lilley).
The Lilley case involved a 14-year-old student who was injured while participating
in “an after-school wrestling program.” (Lilley, supra, 68 Cal.App.4th at p. 942.) As part
of a demonstrative teaching exercise, the wrestling coach “gave each student about
15 seconds to attempt to escape from his application of [a] control hold.” (Ibid.)
“Plaintiff’s turn on the mat came near the end of the [exercise]. During a few seconds of
grappling with [the coach], plaintiff reached his right hand to the mat to brace himself
and broke the bones in his forearm.” (Ibid.)
The injured student sued the wrestling coach and the school district for negligence.
His claims were dismissed on summary judgment based on primary assumption of the
risk. The student appealed, arguing section 44807 “eliminates primary assumption of the
risk as a defense to a negligence action brought by an elementary or secondary school
student who is injured while engaging in any extracurricular sporting activity offered by a
school.” (Lilley, supra, 68 Cal.App.4th at p. 941.) The appellate court rejected that
argument and affirmed the judgment. (Id. at pp. 945–946.)
The Lilley opinion holds that “the policy factors governing primary assumption of
the risk in a general sports setting apply equally to students participating in
extracurricular school sports. [Citations.] Imposition of a duty to protect student athletes
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from any risk inherent in a sport like wrestling would fundamentally alter the nature of
the sport and, in some instances, effectively preclude participation altogether because the
threat of liability would make schools reluctant to offer sports as an extracurricular
activity.” (Lilley, supra, 68 Cal.App.4th at p. 946.)
A similar case, Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th
1112 (Aaris), involved the sport of cheerleading. There, a 10th-grade student “injured
her knee performing a gymnastic stunt at cheerleading practice.” (Id. at p. 1115.)
Although the opinion describes cheerleading as an “extracurricular” activity, it also states
that the injury occurred “during school hours” and as part of “a class elective activity
[that was] supervised by an experienced coach.” (Id. at p. 1119.) This language suggests
a factual scenario analogous to the one in this case, i.e., an injury technically sustained in
a curricular context but in a class tailored to students’ involvement in an extracurricular
team sport. Here, as earlier noted, the intermediate school offered specialized PE classes
dedicated to basketball, cheerleading, and football.
The Aaris court, applying the standards articulated in Knight, explained that “[i]n a
sports setting, ‘the existence and scope of a defendant’s duty of care is a legal question
which depends on the nature of the sport or activity in question and on the parties’
general relationship to the activity ….’ ” (Aaris, supra, 64 Cal.App.4th at p. 1117,
quoting Knight, supra, 3 Cal.4th at p. 313, italics omitted.) Recognizing that orthopedic
injuries are among the inherent risks associated with modern cheerleading (Aaris, at
pp. 1114, 1116–1117), the court further explained that coaches and instructors owe
students only a limited duty not to increase the risks inherent in the sport, “ ‘not a duty to
decrease the risks’ ” (id. at p. 1120).
Policy considerations were factored into the Aaris court’s conclusion that the
cheerleader’s lawsuit was barred by the primary assumption of the risk doctrine. “Were
we to hold that respondent has liability for appellant’s injury, it would fundamentally
alter the nature of high school cheerleading .… School districts would be strictly liable
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for injuries occurring in this extracurricular athletic activity. This would either chill, or
perhaps even kill, high school cheerleading.” (Aaris, supra, 64 Cal.App.4th at p. 1120.)
“We sympathize with an injured cheerleader and any student injured while participating
in extracurricular activities which are inherently dangerous. Such activities are, however,
voluntary.” (Id. at p. 1115.)
In the present appeal, defendants contend Aaris supports allowing a primary
assumption of risk defense when students are injured during a “voluntary school athletic
class supervised by a coach.” (Boldface omitted.) Plaintiff disagrees, arguing the more
persuasive authority is Nigel B. v. Burbank Unified School Dist. (2023) 93 Cal.App.5th
64 (Nigel B.). According to plaintiff, the analysis turns on whether an injury occurs
during a curricular or extracurricular activity.
In Nigel B., an undersized 14-year-old boy (“4 feet 8 inches tall … weigh[ing]
approximately 70 pounds”) endured a campaign of bullying spearheaded by a particular
classmate. (Nigel B., supra, 93 Cal.App.5th at p. 67.) The abuse culminated in the
infliction of a serious knee injury during a “touch football” game. (Id. at p. 69.) Both
boys were “in the same mandatory eighth-grade advanced physical education class.” (Id.
at p. 68.) A footnote explains that the school’s PE teachers “decided whether to place a
student in the advanced or regular physical education class.” (Id., fn. 3.)
The PE teacher in Nigel B. was often disengaged and grossly derelict in his duty of
supervision. “He frequently used his cell phone during class to text, make calls, and
access Facebook.” (Nigel B., supra, 93 Cal.App.5th at p. 69.) The teacher either did not
see or generally ignored numerous prior incidents during which the smaller boy had been
physically mistreated by the bully and other students. (Id. at pp. 68–69.) On the day in
question, after the smaller boy caught a pass during a touch football game, the bully “ran
into him at full speed.” The boy was launched “several feet” into the air, landed on his
left side, and tore the anterior cruciate ligament in his left knee. (Id. at p. 69.) The PE
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teacher was unaware of the incident, even as the boy lay “scream[ing] in pain,” until
another student reported what had happened. (Ibid.)
The bully and his parents were sued for battery and intentional infliction of
emotional distress. (Nigel B., supra, 93 Cal.App.5th at p. 70.) In the same lawsuit,
claims were asserted against the PE teacher and the school district for negligence. (Ibid.)
A jury awarded $1.75 million in damages. (Id. at p. 71.) On appeal, one of several issues
raised was the trial court’s failure to instruct on primary assumption of the risk. (Id. at
p. 72.) The Second Appellate District, Division Five, “decline[d] to extend the
application of the doctrine to a sports activity that is, as [under facts of the case], part of a
mandatory physical education class.” (Id. at p. 73.)
Plaintiff relies on the following sentence in Nigel B.: “[I]t is undisputed that [the
student’s] participation in the physical education class was not voluntary on his part, but
rather was required by the middle school’s curriculum.” (Nigel B., supra, 93 Cal.App.5th
at p. 73.) We observe, however, that the decision was based less on the curricular context
in which the injury occurred and more on the fact of involuntary participation. Although
the opinion notes “it is the compulsory nature of education that imposes, in part, a duty
upon school districts to take reasonable steps to protect their students,” (ibid.) the duty
referred to is one of supervision as codified by section 44807. (See M.W. v. Panama
Buena Vista Union School Dist. (2003) 110 Cal.App.4th 508, 517–519.) The main case
cited by Nigel B. for that proposition, J.H. v. Los Angeles Unified School Dist. (2010)
183 Cal.App.4th 123, also recognizes that “the compulsory nature of education is not the
only factor to consider in determining whether a duty of care exist[s].” (J.H., at p. 142.)
The words “voluntary” and “voluntarily” are used multiple times in Nigel B.
(Nigel B., supra, 93 Cal.App.5th at pp. 72–73.) Phrases such as “ ‘ “voluntarily
participates” ’ ” and “ ‘chose to participate’ ” are emphasized with added italics to
explain why the basic requirements for primary assumption of the risk were not present.
(Id. at p. 73.) The opinion notes that in addition to the PE class being mandatory, it
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“rotated through multiple sports in five-week units” and students “could not opt out of a
particular sport.” (Id. at p. 68.) The court also made a point of distinguishing cases in
which primary assumption of the risk was held applicable to extracurricular programs and
“elective classes.” (Id. at p. 72.) “In each of [those] examples, a plaintiff, in the first
instance, voluntarily participated in an activity (which may have required the undertaking
of certain related tasks), such that application of the doctrine was appropriate.” (Id. at
p. 73.)
Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430 is cited in
Nigel B. as an example of a case involving an elective course. In Fortier, primary
assumption of the risk was held to bar the claims of a college student for injuries
sustained during a football class in which he had “voluntarily participated.” (Fortier, at
p. 439.) The student was injured during a noncontact exercise, and he blamed his
instructors for the circumstances under which the injury occurred. (Id. at p. 436.) The
Fortier decision correctly rejected the argument that instructors always owe students an
ordinary duty of care; their duty is to not “ ‘increase the risks to a participant over and
above those inherent in the sport.’ ” (Id. at p. 435; accord, Nalwa v. Cedar Fair, L.P.,
supra, 55 Cal.4th at p. 1154.)
In plaintiff’s reply brief, he relies on Hemady v. Long Beach Unified School Dist.
(2006) 143 Cal.App.4th 566 (Hemady). There, a 12-year-old student was “struck in the
face with a golf club by another student during a seventh grade physical education golf
class.” (Id. at p. 569.) The class was offered to all students as an option to fulfill the
mandatory PE requirement. (Id. at p. 571.) The injured student “had never played golf[;]
she enrolled in the class because the game interested her.” (Ibid.) Her instructor was also
a relative novice. He had one year of experience as a PE teacher, and his only course-
specific training was the completion of “an hour-and-a-half seminar for teaching golf.”
(Ibid.) According to the student, “the class was unorganized and uncontrolled, and [the
teacher’s] instructions were confusing.” (Ibid.)
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The Hemady student sued her instructor and school district for negligence. The
case was dismissed on summary judgment based on primary assumption of the risk, but
the ruling was overturned on appeal by Division Three of the Second Appellate District.
The appellate court found, as a matter of law, “that being hit in the head by a golf club
swung by another golfer is not an inherent risk in the game of golf, especially in physical
education golf taught to a group of seventh graders.” (Hemady, supra, 143 Cal.App.4th
at p. 576.)
It was unnecessary for the Hemady court to reach any issues beyond the question
of what risks are inherent to the sport of golf. “ ‘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.’ ” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601.) As
such, “recovery for injuries caused by risks not inherent in the activity is not barred by
the doctrine.” (Wolf v. Weber (2020) 52 Cal.App.5th 406, 410–411.) But the Hemady
opinion goes on to provide a secondary reason for reversal, broadly concluding that the
ordinary negligence standard has historically been used “to determine liability of school
districts and their employees for injuries to students which occurred during school
hours.” (Hemady, supra, 143 Cal.App.4th at p. 570.)
The secondary analysis provided in Hemady is arguably dicta. (See Sonic-
Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1158 [“ ‘Dicta consists of
observations and statements unnecessary to the appellate court’s resolution of the
case’ ”].) In any event, it is not persuasive. The opinion cites a handful of cases
involving the duty of supervision, but in none of them was the applicability of a primary
assumption of risk defense considered.1 All but one of the cases predate, by decades,
1 Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741; Pirkle v. Oakdale
Union Grammar School Dist. (1953) 40 Cal.2d 207; Bellman v. San Francisco High
School Dist. (1938) 11 Cal.2d 576; M.W. v. Panama Buena Vista Union School Dist.,
supra, 110 Cal.App.4th 508; Wright v. City San Bernardino High School Dist. (1953)
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contemporary opinions that have considered the defense and concluded it is not
foreclosed by the duty of supervision. The one relatively recent case that was cited, M.W.
v. Panama Buena Vista Union School Dist., supra, 110 Cal.App.4th 508, does not even
support the general “during school hours” rationale. In M.W., a school district was held
liable for negligent supervision based on a sexual assault committed against a special
needs student before the school day began. (Id. at pp. 511–516; see id. at p. 511 [framing
issue presented in terms of “when school grounds are open to students during
noninstructional times”].)
The Hemady court also overlooked the Aaris case, where primary assumption of
the risk was held applicable to an injury sustained “during school hours” and as part of “a
class elective activity.” (Aaris, supra, 64 Cal.App.4th at p. 1119.) Plaintiff seems to
impliedly contend we should assume the Aaris injury occurred in a noncurricular setting
and/or outside of normal instructional hours because the only contrary indication is the
language quoted in the previous sentence. It is not a compelling argument. There is no
reason to believe the Aaris court used the words “during school hours” and “class
elective” arbitrarily or indiscriminately.
Plaintiff acknowledges that his claim against defendants was not based on a theory
of negligent supervision. His theory was that defendant King owed him an ordinary duty
of care to avoid injuring him, notwithstanding any inherent risks associated with a
sporting activity, and that CUSD was vicariously liable for King’s actions. Plaintiff does
not dispute that suffering a wrist injury from a blocked shot is an inherent risk of playing
basketball, nor that blocked shots and even hard fouls are a fundamental part of the game.
Basketball can be “an intensely physical game fraught with risk of serious injury.”
(Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519.) “Body
121 Cal.App.2d 342; and Buzzard v. East Lake School Dist. (1939) 34 Cal.App.2d 316.
(Hemady, supra, 143 Cal.App.4th at pp. 570 & fn. 3, 579–583.)
16.
blocks, charges, fouls, intentional or not, and accidental collisions with other players are
routine and expected.” (Id. at pp. 1519–1520; see Knight, supra, 3 Cal.4th at p. 316 [“in
a game of basketball, recovery is not permitted for an injury caused by a carelessly
extended elbow”].) There was uncontroverted testimony to that effect at trial. Height,
weight, and skill disparities among participants are also inherent to the sport, especially
among still-growing middle school students.
“Primary assumption of risk occurs where a plaintiff voluntarily participates in a
sporting event or activity involving certain inherent risks.” (Wattenbarger v. Cincinnati
Reds, Inc. (1994) 28 Cal.App.4th 746, 751.) In terms of voluntariness, the facts of this
lawsuit are more analogous to Lilley and Aaris (involving the injured wrestler and
cheerleader) than to Hemady and Nigel B. Unlike the latter cases, plaintiff’s Basketball
PE class was neither open to all students nor mandatory for any student. The class
satisfied what plaintiff calls a “compulsory” PE requirement, but in all other respects it
was optional. The trial evidence showed that even members of the basketball team were
not required to take the class.
Recall that in Nigel B., the student was placed in a general PE class that “rotated
through multiple sports in five-week units.” (Nigel B., supra, 93 Cal.App.5th at p. 68.)
“Students could not opt out of a particular sport.” (Ibid.) Here, according to the
uncontroverted evidence, the general PE class at plaintiff’s school similarly rotated
through multiple sports in three-week units, e.g., volleyball, tennis, football, and general
fitness. Plaintiff effectively opted out of all other sports that would normally be required
to satisfy the PE obligation, choosing instead to exclusively play basketball.
For all or nearly all practical purposes, Basketball PE was an extension of the
school’s extracurricular basketball program. Each class period served as an additional
practice session for members of the JV and varsity teams. The class also functioned as a
development program for those who aspired to play basketball at the high school into
17.
which most students would matriculate. Coach Wiggins and defendant King both
candidly acknowledged these facts. King gave the following testimony:
“[The class provides] a comprehensive breakdown of all things
basketball in our program specifically. We go over our defensive
concepts and the half court and the full court. Our different
defensive calls, whether black, white, gold, purple, blue. We have a
lot of different names we call our different defenses. And then the
other side, we work on offensive concepts as well. Our quick hitters.
Our offensive sets. How we play against the zone defense. How do
we play against a man defense. So individual skills in terms of
shooting, dribbling, passing. It’s comprehensive.”
“Our basketball class is basketball year-round. So we’re doing
defensive concepts, offensive concepts, skill building -- everything
we do at our varsity level at the high school all the way down. It’s a
program, 7 through 12. So our 7th graders are trying to run the same
offense our high school kids are running. Running the same
defenses, same quick hitters, and we’re constantly working on
skills.”
The Basketball PE class was not listed in the school’s official course catalog.
Students learned of it by “word of mouth” and had to obtain permission to enroll. A
certain level of basketball “proficiency” was required, and the physical conditioning was
more demanding than general PE. Participants engaged in drills and scrimmaging, and
they received “hands-on” instruction from both coaches. In defendant King’s words,
“you have to be a basketball player, … and [you] have to want to be in there.” It was not
a course designed or suitable for all members of the student body.
“Primary assumption of risk is a policy-driven doctrine.” (Childs v. County of
Santa Barbara (2004) 115 Cal.App.4th 64, 73.) “If the risks are inherent to the activity
or occupation and cannot be mitigated without fundamentally altering the nature of the
activity or occupation, primary assumption of risk applies and the defendant owes no
duty of care.” (Gonzalez v. Mathis (2021) 12 Cal.5th 29, 53.) Having specialized PE
classes that complement and enhance participation in extracurricular team sports is
supportive of legitimate educational objectives, and the continuing feasibility of such
programs is a genuine policy concern. (See Avila v. Citrus Community College Dist.,
18.
supra, 38 Cal.4th at p. 159 [“Sports in the school environment … [are] part and parcel of
the school’s educational mission. ‘It [cannot] be denied that extracurricular activities
constitute an integral component of public education’ ”].)
The bright-line test proposed by plaintiff, based on the technically curricular
nature of an activity regardless of its connection to an extracurricular program and any
considerations of voluntariness, would unduly emphasize form over substance. (See
generally, Gregory v. Cott, supra, 59 Cal.4th at p. 1008 [“Primary assumption of risk is
analyzed in terms of function, not formality”].) Nor is it required by any binding
precedent. Plaintiff relies on two cases from other appellate districts, and both cases are
materially distinguishable. The result urged by plaintiff would also discourage school
districts from offering sport-specific courses like the Basketball PE class in this case.
If school districts and coaches were to face heightened liability exposure for team
practices conducted during school hours, but less exposure for the exact same activities
taking place outside of those hours, the daytime programs would either be discontinued
or diluted. Coaches would be disincentivized from teaching the classes for fear of
personal liability or would refrain from various forms of demonstrative and participatory
instruction. Such chilling effects must be taken into consideration when determining
whether the primary assumption of risk doctrine applies in a given case. (Kahn, supra,
31 Cal.4th at pp. 1006–1008.)
Again, the duty analysis “depends on considerations of public policy, viewed in
light of the nature of the activity and the relationship of the parties to the activity.”
(Gregory v. Cott, supra, 59 Cal.4th at pp. 1001–1002.) The injury in this case was
sustained during a special basketball class into which plaintiff voluntarily enrolled after
taking affirmative steps to be approved. An “assumption” of risk requires volitional
behavior, and voluntariness was present to a much greater degree than in any cases upon
which plaintiff relies. The harm he suffered resulted from risks inherent in the game of
basketball.
19.
It is settled that primary assumption of risk is a defense available to coaches and
instructors under an appropriate set of facts. (Kahn, supra, 31 Cal.4th at pp. 996, 1011.)
“The overriding consideration in the application of [the doctrine] is to avoid imposing a
duty which might chill vigorous participation in the implicated activity and thereby alter
its fundamental nature.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248,
253, citing Knight, supra, 3 Cal.4th at pp. 318–319.) “In their practices, coaches and
instructors may make mistakes. Where those mistakes are not outside the range of
ordinary activity for the sport, the coaches are not liable if injuries result from their
missteps.” (West v. Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351,
360.) Whether defendant King acted outside of the ordinary range of conduct was a
question for the jury, but the trial evidence and the particular circumstances of the case
made primary assumption of risk a viable defense to plaintiff’s negligence claim.
II. The Jury Was Properly Instructed
“Since the existence of the primary assumption of the risk is dependent upon the
existence of a legal duty, and since duty is an issue of law to be decided by the court, the
applicability of that defense is amenable to resolution by summary judgment.” (Freeman
v. Hale (1994) 30 Cal.App.4th 1388, 1395.) The issue is frequently resolved by a
dispositive motion, which is why so many cases we have discussed were appeals from a
summary judgment ruling. Where primary assumption of the risk is applicable but there
are material factual disputes, the doctrine is not explained to jurors. They are merely
instructed on what the plaintiff must prove to overcome the defense.
The Judicial Council’s pattern California Civil Jury Instructions (CACI) have an
instruction designed for use when the defense is asserted by an instructor, trainer, or
coach. First introduced in 2003 as CACI No. 409, the pattern instruction underwent two
substantive revisions before being renumbered in 2017 as CACI No. 471. The instruction
was revised again in 2020, which was the most recent version at the time of trial. It
provided the following template:
20.
“[Name of plaintiff] claims [he/she/nonbinary pronoun] was harmed
by [name of defendant]’s [coaching/training/instruction]. To establish this
claim, [name of plaintiff] must prove all of the following:
“1. That [name of defendant] was [name of plaintiff]’s
[coach/trainer/
instructor];
“2. That [name of defendant] intended to cause [name of plaintiff]
injury or acted recklessly in that [his/her/nonbinary pronoun] conduct was
entirely outside the range of ordinary activity involved in teaching or
coaching [sport or other recreational activity, e.g., horseback riding] in
which [name of plaintiff] was participating;]
“[or]
“[That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g., horseback
riding];]
“3. That [name of plaintiff] was harmed; and
“4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.” (CACI No. 471 (May 2020 rev.)
(2024).)
Over plaintiff’s objection, the trial court elected to use the first of the two
alternatives in the second enumerated element (“option 1”). Accordingly, the jury was
instructed that plaintiff needed to prove “[defendant] King intended to cause Joseph
Yzaguirre injury or acted recklessly in that his conduct was entirely outside the range of
ordinary activity involved in coaching or instructing the sport of basketball in which
Joseph Yzaguirre was participating.”
Plaintiff alleges the trial court erred by not using the second of the two alternatives
in CACI No. 471’s second enumerated element (“option 2”). To properly evaluate the
claim, one must understand the evolution of the instruction’s wording over time. After
we explain that history, the correctness of the trial court’s decision will be apparent.
A. Additional Background
The first, third, and fourth enumerated elements of the pattern instruction have not
materially changed since it was first introduced in September 2003. The second element,
however, has undergone multiple revisions. The key change occurred in 2012.
21.
1. CACI No. 409 (Sept. 2003)
The original pattern instruction for use in cases involving instructors, trainers, and
coaches stated that a plaintiff must prove these elements:
“1. That [name of defendant] was [name of plaintiff]’s [coach/
trainer/instructor];
“2. That [name of defendant] increased the risk of harm beyond
those risks that are a normal part of the sport in which [name of plaintiff]
was participating;
“3. That [name of plaintiff] was harmed; and
“4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.”
The language in the second enumerated element was based on Knight, supra,
3 Cal.4th 296, and appellate court decisions issued after Knight but prior to Kahn, supra,
31 Cal.4th 990. As previously discussed, Knight explained that although persons
generally have no legal duty to eliminate or mitigate the risks inherent in a sporting
activity, the law imposes “a duty to use due care not to increase the risks to a participant
over and above those inherent in the sport.” (Knight at p. 316.) In the context of
coparticipant liability for sports-related injuries, this limited duty is breached when a
coparticipant “intentionally injures another player or engages in reckless conduct that is
totally outside the range of the ordinary activity involved in the sport.” (Id. at p. 318.)
“Left unresolved by Knight was the role played by primary assumption of risk in
cases involving injured students and their coaches or instructors.” (Rodrigo v. Koryo
Martial Arts (2002) 100 Cal.App.4th 946, 952.) The Rodrigo opinion provides an
excellent chronological summary of how post-Knight decisions addressed that issue.
(Rodrigo, at pp. 952–956.) Some courts used Knight’s “intentional[]” and “reckless”
language interchangeably with Knight’s articulation of the limited duty “not to increase
the risks to a participant over and above those inherent in the sport.” (Knight, supra,
3 Cal.4th at pp. 318, 316; see, e.g., Lilley, supra, 68 Cal.App.4th at p. 944 [“ ‘Absent
evidence of recklessness, or other risk-increasing conduct, liability should not be imposed
22.
simply because an instructor asked the student to take action beyond what, with
hindsight, is found to have been the student’s abilities’ ”]; Bushnell v. Japanese-
American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 532 (Bushnell)
[same].)
The California Supreme Court briefly touched upon the issue in Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456: “[T]here are circumstances in which the
relationship between defendant and plaintiff gives rise to a duty on the part of the
defendant to use due care not to increase the risks inherent in the plaintiff’s activity .…
Likewise, a coach or sport instructor owes a duty to a student not to increase the risks
inherent in the learning process undertaken by the student.” (Id. at p. 482.) The court
later characterized those statements as a “passing” comment on the subject. (Kahn,
supra, 31 Cal.4th at p. 1005.)
2. CACI No. 409 (April 2004 rev.)
In April 2004, the second enumerated element of CACI No. 409 was revised. The
prior “increased the risk of harm” language was deleted. Jurors were now told that
liability depended on whether the defendant “intended to cause [[the] plaintiff] injury or
acted recklessly in that [his/her] conduct was entirely outside the range of ordinary
activity involved in teaching or coaching the sport in which [[the] plaintiff] was
participating.” (CACI No. 409 (April 2004 rev.).) This revision was primarily in
response to Kahn, i.e., our Supreme Court’s first decision to squarely address primary
assumption of risk in the context of instructor liability.
In Kahn, “a 14-year-old novice member of [her] school district’s junior varsity
swim team” was injured during a swim meet. (Kahn, supra, 31 Cal.4th at p. 995.) She
“broke her neck” while attempting to execute “a practice dive into a shallow racing pool
that was located on [the] school district’s property.” (Ibid.) The student “alleged that the
injury was caused in part by the failure of her coach, a district employee, to provide her
with any instruction in how to safely dive into a shallow racing pool. She also alleged
23.
lack of adequate supervision and further that the coach breached the duty of care owed to
her by insisting that she dive at the swim meet despite her objections, her lack of
expertise, her fear of diving, and the coach’s previous promise to exempt her from
diving.” (Ibid.)
The ultimate holding of Kahn is summarized early in the opinion: “A sports
instructor may be found to have breached a duty of care to a student or athlete only if the
instructor intentionally injures the student or engages in conduct that is reckless in the
sense that it is ‘totally outside the range of the ordinary activity’ [citation] involved in
teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 996, quoting Knight,
supra, 3 Cal.4th at p. 320.)
The body of the Kahn opinion provides an overview of post-Knight appellate court
decisions on instructor liability. (Kahn, supra, 31 Cal.4th at p. 1006.) Those cases are
described as reflecting a general consensus “that although the coach or athletic instructor
[does] not have a duty to eliminate the risks presented by a sport, he or she [does] have a
duty to the student not to increase the risk inherent in learning, practicing, or performing
in the sport.” (Ibid.) Next, the opinion specifically cites Bushnell as a case clarifying
“that the risks associated with learning a sport may themselves be inherent risks of the
sport, and that an instructor or coach generally does not increase the risk of harm inherent
in learning the sport simply by urging the student to strive to excel or to reach a new level
of competence.” (Kahn, at p. 1006.) It is further noted that “[a] number of Court of
Appeal decisions agree with the Bushnell conclusion that pushing an athlete to compete,
excel, or move to the next level of competence ordinarily does not form a basis for
liability on the part of athletic instructors and coaches.” (Kahn, at p. 1008.)
Following another lengthy discussion of case law, the holding of Kahn is fully
stated as follows:
“We agree 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
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care when to do so would tend to alter the nature of an active sport or chill
vigorous participation in the activity. This concern applies to the process of
learning to become competent or competitive in such a sport. Novices and
children need instruction if they are to participate and compete, and we
agree with the many Court of Appeal decisions that have refused to define a
duty of care in terms that would inhibit adequate instruction and learning or
eventually alter the nature of the sport. Accordingly, we believe that the
standard set forth in Knight, supra, 3 Cal.4th 296, as it applies to
coparticipants, generally should apply to sports instructors, keeping in
mind, of course, that different facts are of significance in each setting. In
order to support a cause of action in cases in which it is alleged that a sports
instructor has required a student to perform beyond the student’s capacity
or without providing adequate instruction, it must be alleged and proved
that the instructor acted with intent to cause a student’s injury or that the
instructor acted recklessly in the sense that the instructor’s conduct was
‘totally outside the range of the ordinary activity’ [citation] involved in
teaching or coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 1011.)
3. CACI No. 409 (June 2012 rev.; Dec. 2013 rev.)
In 2012, the Judicial Council revised CACI No. 409 to provide the alternative
language at issue in this appeal, i.e., option 1 and option 2. The revision was based on
the Judicial Council’s reading of Eriksson v. Nunnink (2011) 191 Cal.App.4th 826
(Eriksson). We will discuss Eriksson’s holding before explaining the 2012 revision.
The Eriksson case was a wrongful death action. The 17-year-old decedent had
been “an avid horse rider and equestrian competitor.” (Eriksson, supra, 191 Cal.App.4th
at p. 830.) She tragically died during an equestrian competition when her horse tripped
over a hurdle. The girl “fell off the horse and the horse fell on [her], causing [her]
death.” (Ibid.)
The family sued the decedent’s riding coach, alleging the instructor was negligent
in assuring and persuading the decedent’s mother that the horse was “fit to ride” in the
event despite the fact it had been “recently injured in another competition.” (Eriksson,
supra, 191 Cal.App.4th at p. 830.) The instructor successfully moved for summary
judgment based on primary assumption of the risk, and the family appealed. The
appellate court reversed.
25.
Like many appellate decisions in this area, the Eriksson opinion contains a
detailed review of case law. The court focused on Tan v. Goddard (1993)
13 Cal.App.4th 1528 (Tan), Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817
(Galardi), and Bushnell, supra, 43 Cal.App.4th 525. Tan and Galardi were decided in
the factually analogous context of horseback riding accidents. The Bushnell case was
factually inapposite, but it warranted discussion because (1) the Bushnell court had
criticized Tan and Galardi and (2) the California Supreme Court had extensively
discussed Bushnell in the Kahn decision.
The Tan case involved an aspiring jockey who enrolled in a training program
offered by the “World Jockey Racing School.” (Tan, supra, 16 Cal.App.4th at p. 1530.)
The student suffered an injury while following his instructor’s directions to ride a
recently injured horse over dangerous rocky terrain. On appeal from a summary
judgment ruling for the defense, the Tan court determined that primary assumption of the
risk did not apply. It was held “that under the circumstances presented by the summary
judgment papers,” the riding instructor owed the student a “duty of ordinary care to see to
it that the horse he assigned [the student] to ride was safe to ride under the conditions he
prescribed for that activity.” (Id. at p. 1535.)
In Galardi, “an accomplished equestrian[] sustained personal injuries when she
fell from a horse while training for an upcoming horse show. On the theories of general
negligence and premises liability, [the injured equestrian] sued the owner of the stables
… and the instructor.” (Galardi, supra, 16 Cal.App.4th at p. 819.) The rider had injured
herself after following the instructor’s directions to “ride through the course in reverse
direction” and attempting to jump over obstacles the instructor had raised too high and
placed too close together. (Id. at p. 820.) On appeal from a summary judgment ruling,
the Galardi court found a triable issue of fact as to whether the defendants “negligently
deployed the jumps at unsafe heights or intervals and thereby breached the duty owed to
plaintiff.” (Id. at p. 823.)
26.
The holdings of Tan and Galardi were criticized in Bushnell “to the extent they
suggested that a coach’s liability might follow from ordinary negligence or simply from
requiring a student to take on a new challenge in order to improve skills—‘at least in the
absence of evidence that the instructor acted recklessly or with an intent to cause
injury.’ ” (Kahn, supra, 31 Cal.4th at p. 1007, discussing and quoting Bushnell, supra,
43 Cal.App.4th at pp. 533–534.) “Those cases could be explained on the ground that the
instructors’ conduct arguably was reckless, in the view of the Bushnell court, but were
unsupportable to the extent they suggested that liability would follow when a coach or
instructor merely urged the student to follow a desirable sequence of training and execute
a maneuver that turned out to be beyond the student’s capacity.” (Kahn, at pp. 1007–
1008.)
Returning to our summary of Eriksson, the appellate court found the Tan case
most analogous to the claims of the deceased equestrian’s family. (Eriksson, supra,
191 Cal.App.4th at p. 846.) In both cases, instructors had directed students to ride injured
horses and gave assurances that doing so would be safe. The Eriksson court reversed the
underlying summary judgment ruling, as to primary assumption of the risk, because the
defendant instructor “failed to set forth facts in her separate statement of undisputed facts
negating the [plaintiffs’] allegation that [the instructor] increased the risk of injury to [the
decedent] by allowing her to ride a horse that was ‘unfit to ride because of prior falls and
lack of practice.’ ” (Id. at p. 830.)
Following the Eriksson decision, CACI No. 409 was revised to provide two
alternatives for instructing on the second enumerated element:
“[That [name of defendant] intended to cause [name of plaintiff]
injury or acted recklessly in that [his/her] conduct was entirely outside the
range of ordinary activity involved in teaching or coaching [sport or other
activity] in which [name of plaintiff] was participating;]
“[or]
27.
“2. [That [name of defendant]’s failure to use reasonable care
increased the risks to [name of plaintiff] over and above those inherent in
[sport or other activity];]” (CACI No. 409 (June 2012 rev.).)
The revised directions for use stated, in pertinent part, “Use the second option if it
is alleged that the coach’s or trainer’s failure to use ordinary care increased the risk of
injury to the plaintiff, for example, by encouraging or allowing him or her to participate
in the sport or activity when he or she was physically unfit to participate or by allowing
the plaintiff to use unsafe equipment or instruments. [Citation to Erikkson, supra,
Cal.App.4th at p. 845.] If the second option is selected, also give CACI No. 400,
Negligence—Essential Factual Elements.” (CACI No. 409 (June 2012 rev.).)
Both the directions for use and a June 2012 report from the Judicial Council’s
Advisory Committee indicate the decision to provide alternative language, and the
wording of option 2, were based on Eriksson, supra, 191 Cal.App.4th at page 845. The
Advisory Committee’s report further confirms its reading of Eriksson as acknowledging
two separate theories of liability: (1) intentional or reckless conduct and (2)
“unreasonable increase in risk.” (Judicial Council of Cal., Advisory Com., Civil Jury
Instructions, rep. to the Judicial Council of Cal., June 22, 2012, p. 3.)
This is what the cited text of Eriksson actually says:
“The following principles can be distilled from [relevant case law]:
To the extent a duty is alleged against a coach for ‘pushing’ and/or
‘challenging’ a student to improve and advance, the plaintiff must show
that the coach intended to cause the student’s injury or engaged in reckless
conduct—that is, conduct totally outside the range of the ordinary activity
involved in teaching or coaching the sport. (Kahn, supra, 31 Cal.4th at p.
1011.) Furthermore, a coach has a duty of ordinary care not to increase the
risk of injury to a student by encouraging or allowing the student to
participate in the sport when he or she is physically unfit to participate or
by allowing the student to use unsafe equipment or instruments.”
(Eriksson, supra, 191 Cal.App.4th at p. 845, italics added, fn. omitted.)
The Eriksson opinion does not purport to recognize a broad “increase the risk of
injury” standard that is separate and distinct from intending to cause injury or acting
recklessly within the meaning of Knight and Kahn. This is apparent, inter alia, from a
28.
footnote in which the Eriksson court agreed with Bushnell’s “characterization of
Galardi.” (Eriksson, at p. 845, fn. 15.) It is also apparent from case law articulating
recklessness and intentional efforts to injure as ways in which the duty not to increase an
inherent risk may be breached. “[T]hose involved in a sporting activity do not have a
duty to reduce the risk of harm that is inherent in the sport itself. They do, however, have
a duty not to increase that inherent risk. [Citation.] Thus, sports participants have a
limited duty of care to their coparticipants, breached only if they intentionally injure them
or ‘engage[] in conduct that is so reckless as to be totally outside the range of the
ordinary activity involved in the sport.’ ” (Shin v. Ahn, supra, 42 Cal.4th at p. 486.)
A subsequent revision to CACI No. 409 in December 2013 reworded option 2 to
phrase liability in terms of whether the defendant “unreasonably increased the risks to
[[the] plaintiff] over and above those inherent in [e.g., horseback riding];]” (CACI
No. 409 (Dec. 2013 rev.).)
4. CACI No. 471 (2017; May 2020 rev.)
CACI No. 409 was renumbered as CACI No. 471 in May 2017 without any
notable changes. The instruction underwent minor, nonsubstantive revisions in May
2020. The full text is as previously quoted.
Remarkably, no published or unpublished case had ever examined the language of
CACI Nos. 409 or 471 prior to Greener v. M. Phelps, Inc. (2024) 107 Cal.App.5th 1080
(Greener). In Greener, the majority of a divided panel from the Fourth Appellate
District, Division One, upheld a trial court’s use of CACI No. 471, option 2. The case
involved a “Brazilian jiujitsu (BJJ) student” who “suffered a fractured neck and a spinal
cord injury due to a series of moves his instructor … performed on him while sparring at
… a BJJ dojo.” (Greener, at p. 1086.) The jury awarded $46 million in damages against
the instructor and the owner of the dojo. (Ibid.)
The main issue in Greener was whether the trial court erred by instructing with
option 2 rather than option 1. The majority opinion recognizes that the wording of CACI
29.
No. 471, when read with its directions for use, essentially states two different standards
of liability. Option 1 is consistent with the primary assumption of the risk doctrine, but
option 2 reflects a “sports-specific negligence standard.” (Greener, supra,
107 Cal.App.5th at p. 1086.)
“Although disputed, evidence before the jury showed [the defendant instructor]
unilaterally used an improper grip that provided inadequate, if any, control of [the
student’s] head and neck to safely perform his intended maneuver, thus increasing the
risk of neck and head injury beyond that inherent in BJJ sparring. There was evidence
[the instructor] had sufficient skill, experience, and time to know his grip was improper
and unsafe. Further, [the instructor] testified he knew, arguably before it was too late to
avoid dangerously increasing the risk of injury …, that ‘something bad was going to
happen’ to [the student] if he proceeded. Yet rather than release his grip, adjust his grip,
[or take some different course of action, he] instead consciously proceeded with the now
dangerously risky maneuver he originally planned to use. As a result of that choice, he
seriously injured [the student].” (Greener, supra, 107 Cal.App.5th at p. 1103.)
Despite the evidence arguably showing an intent to injure or at least
“ ‘recklessness’ ” (Greener, supra, 107 Cal.App.5th at p. 1104), the majority in Greener
concluded it was proper to apply the so-called “increased risk” standard (id. at p. 1103).
Factors cited for this outcome included the instructor’s status as a “ ‘highly skilled
practitioner’ of BJJ with ‘expertise in this field’ ” and his acknowledged “responsibility
as a BJJ instructor for his students’ safety.” (Ibid.) Further, “[a]s in Galardi, Tan,
Wattenbarger, and Eriksson, [the instructor] exercised his superior expertise and
judgment in a manner he knew unreasonably increased the risk [that the student] would
be injured in BJJ sparring.” (Id. at p. 1106.)
The dissenting justice not only disagreed with the majority, but also expressed
concern that Greener would be misapplied in future cases to improperly restrict the
primary assumption of risk doctrine. (Greener, supra, 107 Cal.App.5th at p. 1111–1116
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(dis. opn. of Irion, J.).) The dissenting opinion also notes that a great deal of confusion
still exists among courts “as to whether the duty ‘not to increase the risks to a participant
over and above those inherent in the sport’ is the same as, or different from, the duty to
refrain from ‘intentionally injur[ing] another player or engag[ing] in conduct that is so
reckless as to be totally outside the range of the ordinary activity involved in the sport.’ ”
(Id. at p. 1116 (dis. opn. of Irion, J.).) Justice Irion thus recommended “further attention
to that area of the law from both the Advisory Committee and from our Supreme Court.”
(Ibid.)
The Greener majority likewise suggested that “the Advisory Committee on Civil
Jury Instructions consider proposing a modified version of CACI No. 471.” (Greener,
supra, 107 Cal.App.5th at p. 1108.) However, in response to Justice Irion’s other
concerns, the majority argued there would be no “chilling effect … on ‘hands-on
instruction through coparticipation’ in inherently dangerous sports like football, soccer,
basketball, and cheer” because the facts of the case “involved no hands-on instruction.”
(Id. at p. 1107.) The majority opinion also states, in pertinent part, “We emphasize the
narrowness of our holding, which applies option 2 of CACI No. 471 to combat or
grappling sports when an instructor engages in the activity while not providing any
demonstration or instruction. Consistent with Kahn, option 1 continues to apply to the
vast majority of cases in which a sports instructor is alleged to have injured a student.”
(Greener, at p. 1087.)
5. CACI No. 471 (Dec. 2025 rev.)
In December 2025, while this appeal was pending, the Judicial Council issued a
revised version of CACI No. 471. In this current version, the wording of option 1 uses
the phrase “intentionally injured” instead of “intended to cause” injury, and the word
“recklessly” is deleted from the language regarding “conduct entirely outside the range of
ordinary activity.” Option 2 reads the same as before, but the template now uses the
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example of boxing instead of horseback riding. (Compare CACI No. 471 (Dec. 2025
rev.) with CACI No. 471 (May 2020 rev.).)
More notable is the current version’s addition of optional bracketed language
recognizing, albeit indirectly, that engaging in conduct entirely outside the range of
ordinary activity is itself an act of increasing the risk of harm beyond those risks inherent
in the subject activity.2 In addition, the directions for use now state, in relevant part,
“The second option has been recognized as narrow, while the first option applies to the
vast majority of cases in which a sports instructor is alleged to have injured a student.”
(CACI No. 471 (Dec. 2025 rev.).)
B. Analysis
Plaintiff’s claim of instructional error is not well developed. He presents a
strained analogy to Greener based on defendant King’s “superior knowledge” of
basketball and further contends King “created [a] situation that posed a heightened risk to
[his] safety.” In his reply brief, similarities are alleged between King and the expert
martial arts instructor in Greener because both “ ‘ “gave no demonstration or active
instruction” ’ ” and “ ‘ “acted more like a student coparticipant than an instructor.” ’ ”
The Greener case is manifestly inapposite. As discussed, the majority opinion
limits its holdings to the “narrow[]” context of “combat or grappling sports when an
instructor engages in the activity while not providing any demonstration or instruction.”
(Greener, supra, 107 Cal.App.5th at p. 1087.) The majority also acknowledged that
“option 1 continues to apply to the vast majority of cases in which a sports instructor is
alleged to have injured a student.” (Ibid.) Taking those statements at face value, we
2 The current pattern instruction includes this optional language: “Conduct is
entirely outside the range of ordinary activity involved in teaching or coaching [e.g.,
horseback riding] if that conduct (1) increased the risks to [name of plaintiff] over and
above those inherent in [e.g., horseback riding], and (2) it can be prohibited without
discouraging vigorous participation or otherwise fundamentally changing the
[sport/activity].” (CACI No. 471 (Dec. 2025 rev.).)
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express no views regarding whether the outcome of Greener was correct on the merits.
As the case is so clearly distinguishable, there is no need to discuss it further.
Pattern jury instructions “are not themselves the law, and are not authority to
establish legal propositions or precedent.” (People v. Morales (2001) 25 Cal.4th 34, 48,
fn. 7; accord, Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 82.) “At
most, when they are accurate, … they restate the law.” (Morales, at p. 48, fn. 7.) We
have discussed the applicable law at great length. The primary assumption of risk
doctrine is based on “a rule of limited duty.” (Nalwa v. Cedar Fair, L.P., supra,
55 Cal.4th at p. 1154.) “Where the doctrine applies to a recreational activity, operators,
instructors and participants in the activity owe other participants only the duty not to act
so as to increase the risk of injury over that inherent in the activity.” (Ibid., first and
second italics added.)
The previous section of this opinion explains the origin of the alternative
language, i.e., option 1 and option 2, in CACI No. 471. The wording of option 2 is in
essence an overbroad and incomplete paraphrasing of the holding in Eriksson, supra,
191 Cal.App.4th 826. That case addresses instructor liability for “injury to a student by
encouraging or allowing the student to participate in the sport when he or she is
physically unfit to participate or by allowing the student to use unsafe equipment or
instruments.” (Id. at p. 845, fn. omitted.) Regardless of whether such fact patterns
warrant the application of an ordinary negligence standard, this case does not involve
dangerous playing surfaces, equipment, or other instrumentalities. There were no
alterations to the basic parameters of the game of basketball.
In Kahn, the California Supreme Court twice stated that the Knight standard for
coparticipant liability will generally also apply to coaches and instructors. (Kahn, supra,
31 Cal.4th at pp. 996, 1011.) “[K]eeping in mind, of course, that different facts are of
significance in each setting.” (Id. at p. 1011.) Thus, while some factual scenarios may
warrant a different standard, an instructor generally “may be found to have breached a
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duty of care to a student or athlete only if the instructor intentionally injures the student
or engages in conduct that is reckless in the sense that it is ‘totally outside the range of
the ordinary activity’ [citation] involved in teaching or coaching the sport.” (Id. at
p. 996.)
Plaintiff fails to acknowledge that he relied on a theory of intentional harm at trial,
i.e., the “karate chop” allegation. It was the sole basis for his battery cause of action and
also part of his negligence claim. The language of CACI No. 471, option 1 was directly
applicable to that theory. Plaintiff otherwise relied on testimony that defendant King
“just came out of nowhere” and used tremendous force to block his shot. If true—and
three jurors evidently believed it was—King’s behavior arguably rose to the level of
conduct “entirely outside the range of ordinary activity involved in teaching or coaching”
basketball. (CACI No. 471 (May 2020 rev.); accord, Kahn, supra, 31 Cal.4th at p. 996.)
Therefore, the jury was properly instructed.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
SANDHU, J.
WE CONCUR:
HILL, P. J.
DETJEN, J.
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