Case Name: Jomar Azarcon v. Milpitas Unified School District et al.
Case No: 17CV305604

I. Background

Plaintiff Jomar Azarcon (“Plaintiff”) alleges he was injured while participating in a track and field event at Los Gatos High School. He brings this action against numerous defendants including Rick Wytmar (“Wytmar”), another student participating in the event.

According to the allegations of the second amended complaint (“SAC”), Plaintiff was participating in a shot-put match. (SAC, ¶ 22.) A shot-put is a 12-pound metal sphere that is thrown competitively for distance. (Ibid.) For safety, the throw is made from a designated seven-foot circle into a defined throwing sector. (Ibid.) Adjacent to the throwing sector is a safety buffer zone that must be kept clear of spectators and participants during the event. (Ibid.) According to the rules, participants may only throw the shot-put when the throwing sector and safety buffer zones are clear of any people, and they are required to check for this before making a throw. (Id. at ¶ 23.)

In Plaintiff’s case, he was retrieving his shot-put from the safety buffer zone after a throw when he was struck in the head by a shot-put thrown by Wytmar. (SAC, ¶ 26.) Plaintiff fell to the ground and sustained serious and permanent head injuries. (Id. at ¶ 27.)

As a result of the foregoing, Plaintiff alleges causes of action for: (1) negligence; (2) dangerous condition of public property; and (3) violations of Government Code sections 815.2, 815.5, and 815.6. Only the first cause of action is alleged against Wytmar.

Before the Court is Wytmar’s motion for summary judgment.

II. Evidentiary Objections

In opposition to the motion, Plaintiff raises 23 objections to Wytmar’s evidence. The objections are formatted in conformity with California Rules of Court, rule 3.1354, thus the Court reviews each of them.

The objection on the ground of relevance to Exhibits A, and B, which are the original complaint and the first amended complaint respectively, are SUSTAINED. (See State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1130 [an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading].)

Plaintiff also objects on the ground of relevance to Exhibit C, which is the operative SAC. However, he argues with citations regarding judicial notice that “the court may not take judicial notice of the truth of any factual allegations in the complaint.” This does not substantiate his relevance objection. Furthermore, the SAC is relevant to the allegations Wytmar must meet and defend. Thus the objection to Exhibit C is OVERRULED.

The objection on the ground of relevance to Exhibit D, Plaintiff’s form interrogatories, and Exhibit E, Plaintiff’s requests for production, are SUSTAINED. As Plaintiff argues, these are referenced solely to demonstrate the amount of time Plaintiff has had to conduct discovery, which is not relevant to the motion.

The objection on the ground of lack of foundation to Exhibit F, described as the “National Federation of High Schools 2017 Rules for Track and Field” is OVERRULED. A court may consider such published material in reviewing a motion for summary judgment based on primary assumption of the risk in sporting activities. (See Foltz v. Johnson (2017) 16 Cal.App.4th 647, 656.)

The objection on the ground of lack of foundation to the deposition response in Exhibit G, Deposition of Wytmar, at page 46, is OVERRULED. The question asks the witness “what is the start point, as you understand it, of that 60 seconds.” As the question asks for Wytmar’s understanding as a competitor, it does not lack foundation.

The objections on the ground of relevance, lack of foundation and hearsay to the deposition response in Exhibit H, Deposition of Ronald Huynh, at p. 49, are OVERRULED. The statement is relevant to what student athletes were told about safety during shot-put events. The statement also does not lack foundation, as the witness was asked what instructions or cautionary statements he heard the coach provide the shot-put team. The statement is also not offered for the truth of the matter asserted, as it provides information regarding what athletes were told by coaches, and is not offered for its truth.

The objection on the ground of lack of foundation to the deposition response in Exhibit H, Deposition of Ronald Huynh, at p. 89 is OVERRULED. The witness’s response does not lack foundation as he responded by way of what he typically does: “I always check before it’s clear, then I call the next person up.”

The objection on the ground of speculation to the deposition response in Exhibit H, Deposition of Ronald Huynh, at p. 96 is SUSTAINED. The witness testified regarding whether the student athletes were either “relying on” or “trusting” him, which calls for speculation.

The objections on the grounds of lack of foundation and relevance as to the deposition responses in Exhibit I, Deposition of Louisa Musika, at pp. 37, 38, 42, 79, 92, 100, 107, 142 (l 4-10) and 142-143, are OVERRULED. The witness is Plaintiff’s coach, and has established foundation for the statement regarding how she coaches the team on safety. Also, her statement is relevant to what players are told regarding safety rules, and the customs and practices of keeping the athletes safe during competitions.

The objections on the grounds of lack of foundation and relevance to the deposition response in Exhibit I, Deposition of Louisa Musika, at pp. 79-80 are OVERRULED for the same reasons as stated for the above statement. The objection to this response on the ground of hearsay is also OVERRULED, as it is not an out of court statement admitted for the truth of the matter asserted, but is offered by way of testimony as to what competitors were told for safety purposes.

The objections on the grounds of lack of foundation and relevance as to the deposition responses in Exhibit K, Deposition of Jomar Azarcon, at pp. 184, 252, and 259-261, are OVERRULED. The responses pertain to rules of shot-put competition, and are relevant to his knowledge of competition process and safety procedures as he understands them as a competitor.

III. Motion for Summary Judgment

Defendant moves for summary judgment pursuant to Code of Civil Procedure section 437c.

A. Procedural Issues

Preliminarily, the Court notes that Wytmar’s separate statement does not conform to California Rules of Court, rule 3.1350, subd. (d). Among other things, the rule defines “material facts” as those that relate to the “issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Cal. Rules of Court, rule 3.1350, subd. (a)(2).) The rule also requires that each “issue of duty, or affirmative defense” be separately identified in the separate statement. (Cal. Rules of Court, rule 3.1350, subd. (d)(1)(A).) Likewise, the separate statement must identify each supporting material fact claimed to be without dispute with respect to the “issue of duty, or affirmative defense.” (Cal. Rules of Court, rule 3.1350, subd. (d)(1)(B).) Finally, the separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. (Cal. Rules of Court, rule 3.1350, subd. (d)(2).)

While Wytmar states the defense as “Negligence (Argument – lack of duty)” this does not sufficiently describe the defense of primary assumption of the risk, such that the Court can quickly discern which facts support which elements of the defense. Furthermore, while 62 purportedly “material” facts are set out in the separate statement, Wytmar’s substantive arguments rely on only roughly 25 of them. Others are used by way of background information, and are not material to the assessment of duty. Thus, the separate statement is unnecessarily long.

This presentation has rendered the Court’s task in reviewing the motion more complex, and to some extent defeats the purpose of the separate statement. (See Rush v. White Corp. (2017) 13 Cal.App.5th 1086, 1101 [a separate statement provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts].) Nonetheless, the Court will consider the motion on its merits, but cautions counsel to comply with the rules of court in the future.

B. Legal Standard

“A motion for summary judgment shall be granted when ‘all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’” (Code Civ. Proc., 437c, subd. (c); Hartline v. Kaiser Foundation Hospitals (2005) 132 Cal.App.4th 458, 464, internal citations omitted.) “The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must make a prima facie showing either that the plaintiff cannot establish one or more elements of a cause of action or that there is a complete defense to the action. (Code Civ. Proc., § 437c, subd. (p)(2); Ibid.) The defendant may satisfy the initial burden of production by presenting evidence that conclusively negates an element of the plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 854.) Once defendant meets its burden, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. (Id. at 850.)

The motion is evidentiary in nature and cannot be based solely upon the allegations in a pleading. (College Hospital Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.) In ruling on the motion, a court cannot weigh the evidence presented or deny summary judgment or adjudication on the ground that any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160 Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.)

C. Primary Assumption of the Risk

Wytmar argues that he owed Plaintiff no duty because Plaintiff assumed the risks inherent to the shot-put competition, and he did nothing to increase the risk to Plaintiff, thus there is a complete defense to the cause of action for negligence.

Primary assumption of risk is a question of law amenable to resolution by summary judgment because, if applicable, it negates the duty element of a negligence claim. (Knight v. Jewett (1992) 3 Cal.4th 296, 313 (“Knight”).) “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks.” Connelly v. Mammoth Mountain Ski Area (1994) 39 Cal.App.4th 8, 11 (“Connelly”), citing Knight, supra, 3 Cal.4th at 314-316. The doctrine bars recovery because no duty of care is owed as to these inherent risks. (Ibid.) In evaluating whether a case comes within the primary assumption of risk doctrine, a court must examine (1) the nature of the activity and (2) the plaintiff’s and defendant’s respective roles in, or relationships to, the activity. (Yancey v. Superior Court (1994) 28 Cal.App.4th 558, 562 (“Yancey”).)

Here, it is undisputed that Plaintiff and Wytmar were co-participants in a shot-put competition at the high school level. (See UMFs Nos. 8, 9, 10, 13.) Thus, the issue is what duty one participant in a shot-put competition owes to a co-participant. (See Yancey, supra, 28 Cal.App.4th 558, 563.) The analysis turns on whether the careless conduct at issue is an inherent risk of the sport, and whether imposition of a legal duty will alter the nature of the sport or chill participation in it. (Id. at 565.)

Though Wytmar’s arguments seek to distinguish it from the present facts, the Yancey case is instructive. In Yancey, while retrieving her own discus after a throw, a student was injured by a discus thrown by another student during a physical education class at a community college. (Yancey, supra, 28 Cal.App.4th 558.) As with a shot-put, “[t]he discus, by its nature, involves launching a dangerous projectile.” (Id. at 565.) While the court in Yancey acknowledged that “anyone within the area… is subject to some risk of being struck by a thrown discus” the issue was whether the “careless conduct of a participant in throwing the discus without first ascertaining the target area is a clear and inherent risk of the sport.” (Ibid.) In determining that the doctrine of primary assumption of risk did not apply to the facts, the court reasoned that “nothing about the inherent nature of the sport requires that one participant who has completed a throw and is retrieving his or her discus should expect the next participant to throw without looking toward the landing area.” (Ibid.)

As Wytmar argues, the Yancey court noted its holding was limited to the facts of the case, specifically a physical education class, and stated that: “Conceivably, in a competitive meet evidence may show that custom or established rules of the event relieve a thrower from any obligation to make sure the landing area is clear of other persons before throwing.” (Yancey, supra, 28 Cal.App.4th 558, 566 fn. 2.)

Beyond this, Wytmar’s argument regarding this footnote and his attempts to distinguish the present facts from those in Yancey are not well developed. For example, he notes shot-put is an “active sport” and offers a summary of sports found by courts to be “active.” The only evidence he points to is the fact that “the boys were using a 12 pound shot.” (UMF No. 13.) While undisputed, this does not distinguish the present facts from those in Yancey, which involved the throwing of a discus which the court described as a “dangerous projectile.” (Yancey, supra, 28 Cal.App.4th 558, 565.) The shot-put, as a 12-pound sphere is no more dangerous, and based on the analysis in Yancey cannot be the basis for the competition being an “active sport.” Thus, these arguments do not establish that being hit with a shot-put is an inherent part of the sport.

Wytmar goes on to argue that his evidence regarding known safety precautions tends to establish the inherent danger of the sport during competitions. This testimony includes one safety rule which requires a competitor to never turn their back or face away from the ring when retrieving his or her implement. (UMF Nos. 30, 31.) Likewise, it is undisputed that a competitor retrieving his or her implement would want to know what kind of throwing position the next competitor was using before retrieval. (UMF No. 33.) It is also undisputed that competitors should not be in the field of play or retrieve their implement while an athlete is in the ring, because the athlete’s back is to the sector line. (UMF No. 34.) Wytmar also offers Plaintiff’s testimony that he had seen a shot land outside the boundary of the playing area “once or twice” – not necessarily during this competition – and knew that it was possible for this to happen. (UMF No. 41.) Also, he points to Plaintiff’s coach’s testimony indicating “throwing events are potentially dangerous events since they involve throwing implements, and it is possible they could exit the field of play.” (UMF Nos. 42, 43.) Likewise, it is always possible, and common that implements go out of bounds, and competitors must always watch the ring because a throw might go out of bounds. (UMF Nos. 45, 46.)

However, “’a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Foltz v. Johnson (2017) 16 Cal.App.5th 647, 654, citing Luna v. Vela (2008) 169 Cal.App.4th 102, 108.) The court may consider its “common experience with the recreational activity involved as well as case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” (Id. at 656.)

As a result, the Court observes that the known and “foreseeable” risks for which Wytmar provides evidence do not establish that they are “inherent” to the sport. And while he lists and states the facts and holdings of numerous cases assessing the doctrine of primary assumption of the risk, he does little to persuade the Court that the Yancey holding does not apply to the present facts. As that court held, “discus, unlike many sports (e.g., football, baseball, basketball …etc.) does not require that a ball or other article be propelled towards other participants or into a defined area occupied by other participants.” (Yancey, supra, 28 Cal.App.4th 558, 565-566.) Only one participant is directly engaged in the activity at any given moment. (Ibid.) Thus, with respect to a potential chilling effect of “requiring discus participants to check the target area before launching a throw” the court concluded this would “not alter or destroy the inherent nature of the activity itself.” (Id. at 566.)

By contrast, the list of cases upon which Wytmar relies involve activities where either the participants or the implements used are expected to be in the same field of play as other co-participants. Such is the case with skiing, where all participants are on the slope together and the risk of collisions with each other is “inherent.” (Cheong v. Antablin (1997) 16 Cal.4th 1063.) Likewise, the holding in Shin v. Ahn (2007) 42 Cal.4th 482, recognized the nature of golf involves striking a ball into an area that is likely and expected to have other players, and applying the defense so as not to have a chilling effect on the sport. In Cann v. Stefanec (2013) 217 Cal.App.4th 462, swimmers engaged in weight training were in close proximity to each other in a training room, and dropping the weight was encouraged for safety, rendering the risk of a weight drop inherent, again on the theory that imposing liability would chill vigorous participation. Finally, Balthazor v. Little League Baseball (1998) 62 Cal.App.4th 47 involved a little league player injured by an errant hit, which the court found an inherent risk of the sport, and again involved co-participants on the field of play at the same time, where the very nature of the sport involves lodging balls at each other.

The shot-put event at issue here, though, does not involve either players and/or their implements to be on the same field of play, nor is the implement intentionally lodged at other players or in their expected vicinity – either for safety or as part of the competition. In fact, the record supplied by Wytmar suggests that great efforts are made to prevent implements being lodged at other players, by way of constant safety checks and awareness of when it is safe to retrieve the put. Thus, the cited cases where primary assumption of the risk was applied are distinguishable. Furthermore, Wytmar’s reference at the end of his argument to a statement in Yancey regarding the duty owed when the implement is shot outside the field of play as it was here, does not substantively explain why that would be an inherent risk of the sport and does not provide support for his position.

Wytmar’s reliance on the possible chilling effect on the sport by not applying primary assumption of the risk is also not persuasive. For one thing, his statement that “Plaintiff was not in the vicinity of his shot when Wytmar entered the throwing ring” is unsupported by a citation to the evidence. The closest fact in support produced by Defendant and cited in the separate statement is the deposition of Ronald Huynh. While cited in the separate statement as “no one was in or approaching the retrieval area when defendant was given the okay to throw” Huynh actually testified that he did not “see” anyone in the retrieval area. (R. Huynh Depo. 184:3-24.) Therefore, this argument misstates the limited evidence on point.

Wytmar also argues that Plaintiff’s imposition of a check of the field “before the shot is put” necessarily means there is a pause/check after the participant has already engaged in his throw, which would chill vigorous performance. The evidence presented, however is that Wytmar should have checked to make sure “the entire throwing sector… was clear upon entering the throwing cage and again before throwing his shot implement.” (Def. Ex. N, Plt. Rspns. to SI, ¶ 12.) Without more, this evidence does not necessarily impose a requirement that there be a pause before the implement leaves the athlete’s hand, but could be interpreted to impose a requirement that another check be made even before the wind up — the so-called glide method commonly used in this competition – is even initiated. In fact, the National Federation of State High School Association’s “Track and Field and Cross Country Rule Book” pages, admitted by Wytmar, states it is a “foul” if one implementing a put “fails to pause” after stepping into the throwing circle. (Exhibit F, p. 57, article 9, subd. (b.), emphasis added.) Thus, the manual supports an inference that the pause proposed by Plaintiff’s allegations is one made prior to the wind up, is expected in the sport, and would not interfere with or chill vigorous performance. Thus, the carelessness of a player not checking the field or retrieval area before a throw has not been shown to be an inherent risk of the sport.

As a result of the foregoing, Wytmar has not met its burden to show that the defense of primary assumption of the risk entitles him to summary judgment as a matter of law.

Consequently, the motion for summary judgment is DENIED.