Kahn v. East Side Union High School District

KENNARD, J., Concurring and Dissenting.

More than a decade ago in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 ] (Ford) a plurality of three justices of this seven-member court concluded that participants in active sports have no duty to act with the ordinary care expected of a reasonable person to prevent injury to coparticipants. I disagreed with that position in Knight and Ford (Knight, supra, at pp. 324-338 (dis. opn. of Kennard, J.); Ford, supra, at pp. 351-364 (conc. opn. of Kennard, J.), and have continued to do so (see Cheong v. Antablin (1997) 16 Cal.4th 1063, 1075 [ 68 Cal.Rptr.2d 859 , 946 P.2d 817 ] (conc. opn. of Kennard, J.) [decrying the “no duty” approach as “tearing at the fabric of tort law”]). In this case, the majority extends the no duty rule to a coach of a high school athletic team, concluding that the coach’s alleged failure to train and supervise a young student athlete to dive into a shallow pool, resulting in her serious injury, is of no legal consequence. In the majority’s view, a coach of teenage athletes need have little concern for their physical safety.

I disagree. I would hold high school coaches to the general standard of ordinary care. Concluding that the coach’s conduct here may have passed beyond negligence into the zone of recklessness, the majority reverses the Court of Appeal’s judgment. I join in the reversal of the Court of Appeal’s judgment, but for different reasons. I would require the injured plaintiff to establish only negligence, not recklessness.

*1022 I

Pertinent here are two decisions of this court involving personal injury actions brought by sports participants against coparticipants, Knight, supra, 3 Cal.4th 296 , and Ford, supra, 3 Cal.4th 339 . In Knight, the plaintiff sued a member of the opposing team for injury suffered during a touch football game; the plaintiff in Ford , while waterskiing, collided with a tree and then sued the ski boat driver. In each case, the defendant asserted that the plaintiff’s knowing and voluntary participation in the sport barred recovery under the doctrine of assumption of risk, an affirmative defense recognizing that “a person generally should be required to accept responsibility for the normal consequences of a freely chosen course of conduct.” (Knight, supra, at p. 332 (dis. opn. of Kennard, J.); Ford, supra, at p. 361 (conc. opn. of Kennard, J.).) In both cases, a three-justice plurality of this court abolished assumption of risk as an affirmative defense to a negligence action. (Knight, supra, at p. 320 ; Ford, supra, at pp. 344-345 (lead opn. of Arabian, J.); id. at p. 364 (conc. and dis. opn. of George, J., joined by Lucas, C. J.).) Under that view, assumption of risk is an aspect of the duty of care that one person owes to another, and when a participant in an active sport seeks recovery from a coparticipant, it abrogates the defendant’s ordinary duty of care. As the plurality phrased it in Knight, supra, at page 320, “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.” (Fn. omitted.)

I disagreed with the plurality’s view that assumption of risk is an aspect of duty. ( Knight, supra, 3 Cal.4th at pp. 324—338 (dis. opn. of Kennard, J.); Ford, supra, 3 Cal.4th at pp. 351-364 (conc. opn. of Kennard, J.).) I explained that by “recasting] the analysis of implied assumption of risk from a subjective evaluation of what a particular plaintiff knew and appreciated about the encountered risk into a determination of the presence or absence of duty legally imposed on the defendant,” the plurality “transform[ed] an affirmative defense into an element of the plaintiff’s negligence action,” thereby “abolishing] the [assumption of risk] defense without acknowledging that it [was] doing so.” (Knight, supra, at p. 324 (dis. opn. of Kennard, J.).)

But even assuming that the only duty of care that participants in active sports owe each other is to avoid intentional injury or recklessness, that standard should not govern the conduct of a professional coach entrusted to teach novice athletes.

*1023 II

The majority holds that a severely injured 14-year-old student athlete cannot recover for the negligence of her junior varsity swim team coach who allegedly failed to train her to perform a dangerous shallow-water dive before requiring her to execute the dive in a competitive swim meet.

Negligence consists of “creating] or fail[ing] to avoid unreasonable risks of foreseeable harm to others.” (1 Dobbs, Torts (2001) § 166, p. 275.) That rule is reflected in Civil Code section 1714, which makes every person responsible for “an injury occasioned to another by his or her want of ordinary care . ...” In general, the standard of ordinary care is satisfied when the conduct conforms to that of “a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [ 25 Cal.Rptr.2d 97 , 863 P.2d 167 ].) Thus, defendant coach in this case should be held liable if, in teaching plaintiff the requisite skills of competitive swimming and in supervising her progress, the coach’s conduct fell short of that of a reasonable coach of student athletes in similar circumstances.

The majority, however, considers that standard of care too onerous in this case. It holds that the coach is not liable if his conduct merely created an unreasonable risk of foreseeable harm. According to the majority, plaintiff student must prove that the coach acted intentionally to cause her injury, or that he acted recklessly through conduct “ ‘totally outside the range of the ordinary activity’ [citation] involved in teaching or coaching” the sport of junior varsity competitive swimming. (Maj. opn, ante, at p. 996.) In doing so, the majority adopts the same standard for a professional coach of novice teenage athletes that the Knight and Ford plurality found appropriate for participants in active sports. Not taken into account by the majority is the significant difference between the two groups. Persons participating in active sports have to expect that a coparticipant may play too roughly and thus cause injury. By contrast, coaches of student athletes teach them the skills necessary to perform their sport of choice safely and effectively. Because student athletes, particularly minors, often consider their coach a mentor or role model, they trust the coach not to carelessly and needlessly expose them to injury. The majority’s decision puts an end to that trust: Coaches are under no legal obligation to use reasonable care in training their students how best to perform a sport without incurring personal injury.

The concurring opinion agrees with the majority that a coach incurs liability to a student athlete only for conduct “ ‘ “totally outside the range” ’ ” of ordinary coaching activity. (Conc. opn. of Werdegar, J., ante, at p. 1018.) But it objects to the majority’s labeling such conduct “ ‘reckless’ ” (ibid.), preferring to call it “gross negligence.” (Id. at p. 1020.) Whatever one *1024 chooses to call it, the standard the majority imposes is dangerously lax; it puts concern for the physical safety of children far down on a secondary school coach’s list of priorities.

The majority asserts that requiring coaches to act reasonably when instructing young students would “improperly chill[]” their efforts “to challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks.” (Maj. opn., ante, at p. 996.) Not so. Because participation in active sports always entails some risk of harm, the traditional negligence standard imposes liability on an athletic coach only for conduct that exposes players to an “unreasonable risk” of such harm. (1 Dobbs, Torts, supra, § 166, p. 275.) This standard of negligence requires no more of coaches than that they conform their conduct to that of “a reasonably prudent person under like circumstances.” (Ramirez v. Plough, Inc., supra, 6 Cal.4th at p. 546 .) Thus, contrary to the majority’s view, applying the negligence standard here would leave coaches free to challenge or push their students to advance their skills level as long as they do so without exposing the student athletes to an unreasonable risk of harm.

High school shop instructors who teach students how to operate a power saw or repair a car, and chemistry teachers in their laboratories, are held to a standard of ordinary negligence. Why should a different standard apply to an instructor who teaches students competitive swimming? According to the majority, a different standard is called for because a coach must “challenge or ‘push’ a student or athlete to advance in his or her skill level and to undertake more difficult tasks.” (Maj. opn., ante, at p. 996.) Yet any teacher, no matter what the subject matter, challenges students to perform with ever greater skill and to undertake progressively harder tasks. There is no logical basis for treating coaches differently.

III

The majority concludes that summary judgment was improperly granted for defendant coach because triable issues of fact exist as to whether he acted recklessly such that his conduct was totally outside the range of the ordinary activity of a coach of junior varsity competitive swimming. In my view, plaintiff’s allegations that defendant did not adequately prepare her to execute a dive in shallow water before directing her to perform the dive at a swim competition states a cause of action for negligence, not recklessness. But I agree with the majority in reversing the Court of Appeal, which upheld the trial court’s grant of summary judgment.

These are my reasons for reversing the Court of Appeal: The trial court granted summary judgment on the ground that defendant coach had no duty *1025 to avoid negligent conduct in instructing and supervising plaintiff. Because in my view a professional coach of high school students has a duty to act reasonably in instructing and supervising them, and no evidence before the trial court established that plaintiff voluntarily assumed the risk of her injury, defendant was not entitled to summary judgment. Accordingly, I would reverse the Court of Appeal and remand this case for trial on plaintiff’s negligence action.