Case Number: BC703644 Hearing Date: September 19, 2019 Dept: 4A

Motion for Summary Judgment, or in the alternative, Summary Adjudication

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On April 23, 2018, Plaintiff Isabella Rodriguez, by and through her guardian ad litem Jessica Rodriguez, (“Plaintiff”) filed a complaint against Defendant Paramount Unified School District (“Defendant”) alleging premises liability and negligence for a fall off monkey bars on October 6, 2017.

On July 5, 2019, Defendant filed a motion for summary judgment or, in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

Trial is set for October 23, 2019.

PARTY’S REQUEST

Defendant asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff on the grounds that: (1) the primary assumption of risk doctrine applies, (2) there was no dangerous condition, and (3) any lack of supervision did not cause Plaintiff’s harm.

OBJECTIONS

Defendant objects to Plaintiff’s undisputed material fact number 4 on the grounds that it is argumentative, lacks foundation, lacks personal knowledge, is speculative, and misstates evidence. This undisputed material fact states that Plaintiff reached only the second bar on the monkey bars before she fell because the sun had overheated the metal bars and burned her hand. Plaintiff testified that she got only to the second bar because the sun was so hot. This can reasonably be read to mean that the heat of the sun made the bars that Plaintiff was grasping for too hot to hold. These objections are OVERRULED.

Defendant objects to Plaintiff’s undisputed material fact number 13 on the grounds that it is irrelevant, argumentative, lacks personal knowledge, lacks foundation, is speculative, and misstates evidence. This undisputed material fact states that the temperature of the playground equipment was not checked prior to the children beginning to play in the midday sun. The evidence supporting this undisputed material fact is the declaration of Plaintiff’s expert. However, there is no underlying evidence proffered as the support for which Plaintiff’s expert makes this declaration. Accordingly, the objection to this evidence supporting Plaintiff’s undisputed material fact number 13 is SUSTAINED because Dr. Gelhart lacks personal knowledge and his statements about Defendant’s failure to check the equipment is speculative.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Id.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Primary Assumption of Risk

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 (“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”).) “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 (citation omitted).)

“Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk.” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866 [citations omitted].) “Whether a duty exists ‘does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on [1] the nature of the activity or sport in which the defendant is engaged and [2] the relationship of the defendant and the plaintiff to that activity or sport.’ . . . If a duty is found not to exist, primary assumption of risk applies, and a defendant is liable only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally outside the range of the ordinary activity involved in the sport or activity.” (Id. [citing, inter alia, Knight v. Jewett (1992) 3 Cal.4th 296, 309, 320.) There is also a duty not to unreasonably increase the risks of injury to participants beyond those inherent in the activity. (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162.) The doctrine of primary assumption of risk applies “where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport [or activity] itself.’” (Saville, supra, at p. 867 (citation omitted).)

To evaluate the applicability of the primary assumption of risk doctrine, a court must examine “the nature of the sport itself,” as well as “the defendant’s role in, or relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.) “[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’” (Nalwa, supra, 55 Cal.4th at p. 1156 (citing Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658).)

The Court in Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 944-947 analyzed whether Education Code section 44807, which is the codified duty for schools to supervise students, eliminates the application of the primary assumption of risk doctrine in the sports context. That Court stated the following:

We decline to construe the general duty of supervision embodied in section 44807 to foreclose application of the primary assumption of the risk doctrine to those risks inherent in school sports. Nothing in the statute evinces an intent to modify common law assumption of the risk principles. [Citation.] Moreover, 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 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 pp. 945-946.)

The Court in Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 607 elaborated further on the Court’s ruling in Lilley with regards to section 44807’s impact on the doctrine of the assumption of risk. The Court in Jimenez clarified that “just as section 44807 cannot be construed as undermining assumption of the risk in all cases involving school children, nothing in Lilley can be construed to eliminate the general duty of supervision in all cases involving children when it is that duty . . . that provides a basis for liability.” (Ibid.). The Jimenez Court found the duty to supervise the plaintiff trumped the primary assumption of risk doctrine when the defendant district knew that students were break dancing in a classroom and that some of those students had been previously been doing flips. (Ibid.)

Here, Defendant argues the primary assumption of risk doctrine bars both Plaintiff’s premises liability and negligence causes of action. Defendant’s undisputed material facts establish the following. On October 6, 2017, Plaintiff fell while playing on circular monkey bars at Mokler Elementary School. (UMF No. 1-2, p. 2:14-2:24.) No one pushed Plaintiff or made her fall from the monkey bars. (UMF No. 3, p. 2:24-2:27.) Jessica Bernabe was supervising the students on the date and time of the incident. (UMF No. 5, p. 3:7-3:10.) Prior to the incident, Plaintiff’s Kindergarten teacher worked with her students to model and instruct on the use of the monkey bars. (UMF No. 6, p. 3:11-3:15.) Plaintiff knew how to use the monkey bars before she fell. (UMF No. 7, p. 3:15-3:20.) There were no reported concerns regarding the Kindergarten playground at safety committees held in September and November of 2017. (UMF No. 14, pp. 4:23-4:1.) Neither the principal of Mokler nor Plaintiff’s Kindergarten teacher ever received complaints from parents, students, or teachers regarding the safety of the monkey bars on the Kindergarten playground. (UMF No. 15, p. 5:1-5:8.)

The Court finds Defendant has met its burden of proof in establishing Plaintiff’s causes of action are barred by the primary assumption of risk doctrine. It goes without saying that the risk of falling is an inherent risk in using monkey bars. There is no indication that the monkey bars were unsafe in any way. Rather, Plaintiff knowingly subjected herself to the risk of falling when she used the monkey bars on the day of the incident. This risk cannot be eliminated without altering the fundamental nature and activity of using monkey bars. Accordingly, the burden shifts to Plaintiff.

Plaintiff’s undisputed material facts establish the following. Plaintiff’s fall happened on her first use of the circular monkey bars. (PUMF No. 3). She was alone when she fell, with the Noon Duty Aide near the building in the shade and not watching the playground at the time Plaintiff fell. (PUMF Nos. 5, 8-10). Plaintiff only got to the second bar before she fell because the sun had overheated the metal bars and burned her hand. (PUMF No. 4, p. 32:16-32:21.)

Plaintiff’s undisputed material facts also establish the following. The U.S. Consumer Product Safety Commission’s Public Playground Safety Handbook (“CPSC Handbook”) suggests that playground equipment should be shaded or located out of the direct sun and should be used with warnings that equipment and surfaces exposed to intense sun can burn. (PUMF No. 19, pp. 34:27-35:4.) The CPSC Handbook also suggests that playgrounds should be laid out to allow parents and caregivers to keep track of children as they move throughout the playground equipment. (PUMF No. 21, p. 35:9-35:12.) The CPSC Handbook further suggests that playground supervisors should be aware that not all playground equipment is appropriate for all children who may use the playground, including checking for safe equipment or wandering off. (PUMF No. 22, p. 35:12-35:17.)

Plaintiff’s undisputed material facts further establish the following. The Consumer Product Safety Commission’s Fact Sheet (“CPSC Fact Sheet”) states that playground equipment sitting in direct sunlight can cause burns to the hands of children, which are more sensitive to burning than adult hands. (PUMF No. 20, p. 35:4-35:8.) The CPSC Fact Sheet also advises that the temperature of equipment and surfacing should always be checkec before letting children play on the playground or equipment. (PUMF No. 23, p. 35:18-35:21.)

Plaintiff has submitted sufficient evidence to support Plaintiff’s theory of liability that Defendant’s failure to supervise the children playing on the monkey bars was reflected by the high heat of the monkey bars exposed to the hot sun. As indicated above, Plaintiff has failed to submit admissible evidence showing that Defendant did not check the temperature of the monkey bars before Plaintiff started across the bars on the date of the incident. However, a reasonable inference can be drawn from Plaintiff’s fall as a result of heat on the monkey bars that Plaintiff was not told to refrain from using them or warned about their hot temperature. Accordingly, it reasonably follows that either Defendant checked the monkey bars for heat and did not adequately supervise Plaintiff by shepherding her away from the monkey bars, or Defendant did not check the monkey bars for heat at all. Either way, Plaintiff’s fall is alleged to be due to Defendant’s failure to supervise Plaintiff’s use of the hot monkey bars, and thus, this duty trumps the primary assumption of risk doctrine.

Dangerous Condition

“Except as otherwise provided by statute, a public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or public employee or any other person.” (Gov. Code § 815.)

Government Code section 835 states: “Except as provided by statute, a public entity is liable for injury caused by a dangerous condition of its property if the plaintiff establishes that the property was in a dangerous condition at the time of the injury, that the injury was proximately caused by the dangerous condition, that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and either:

(a) A negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or¿

(b) The public entity had actual or constructive notice of the dangerous condition under Section 835.2 a sufficient time prior to the injury to have taken measures to protect against the dangerous condition.”

The term “dangerous condition” means a “condition of property that creates a substantial (as distinguished from a minor,¿trivial¿or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it¿will be used.” (Gov. Code § 830, subd. (a).) “The existence of a dangerous condition ordinarily is a question of fact, but the issue may be resolved as a matter of law if reasonable minds can come to only one conclusion.” (Peterson v. San Francisco Comm. College Dist.¿(1984) 36 Cal.3d 799, 810.) “A condition is not dangerous within the meaning of the statute ‘unless it creates a hazard to those who foreseeably will use the property . . . with due care. Thus, even though it is foreseeable that persons may use public property without due care, a public entity may not be held liable for failing to take precautions to protect such persons.” (Matthews v. City of Cerritos¿(1992) 2 Cal.App.4th 1380, 1384.) “The condition of the property involved should create a ‘substantial risk’ of injury, for an undue burden would be placed upon public entities if they were responsible for the repair of all conditions creating any possibility of injury however remote that possibility might be.” (Fredette¿v. City of Long Beach¿(1986) 187 Cal.App.3d 122, 130, fn.5.)

Defendant argues Plaintiff fails to identify any defective physical feature or other condition of the property that caused her injury in the complaint. (Motion, pp. 13:25-14:14.) The Court agrees. The complaint is silent as to what aspect of the structure was defective. As such, Defendant has met its burden.

However, as seen above, Plaintiff submitted evidence that gave rise to a reasonable inference that, because of their placement in the direct sunlight with no shade structures, the subject monkey bars became excessively hot such that Plaintiff could not hold onto them and Defendant failed to supervise Plaintiff properly when it allowed her to use the extremely hot monkey bars without warning her of the hazard. Thus, summary judgement cannot be granted on this ground.

Negligent Supervision

“California law has long imposed on school authorities a duty 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.” (Dailey v. Los Angeles Unified Sch. Dist.¿(1970) 2 Cal.3d 741, 743, quotations and citations omitted.) Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for student supervision. (Ibid.) “Under section 815.2, subdivision (a) of the Government Code, a school district is vicariously liable for injuries proximately caused by such negligence.” (Ibid. (footnote omitted).)

Defendant argues that Plaintiff’s injury was too sudden and spontaneous for any additional supervision to have had any preventative effect. Thus, Defendant argues the lack of supervision did not cause Plaintiff’s injury. But Defendant produced no evidence to support this contention. For example, there is no evidence that additional supervision would not have stopped Plaintiff from grabbing the first or second rung of the monkey bars. There is also no indication that additional supervision would not have stopped Plaintiff from walking towards the monkey bars in anticipation that Plaintiff might grab the hot bars. Given the absence of evidence supporting its contention that additional supervision could not have prevented the injury, Defendant has not met its burden of showing an absence of triable issues as to whether its failure to provide adequate supervision caused Plaintiff’s injury.

CONCLUSION

The motion for summary judgment, or in the alternative, summary adjudication is DENIED.

Plaintiff is ordered to give notice of this ruling.