Case Name: Ravi Sharma v. East Side Union High School District, et al.

Case No.: 2014-1-CV-264694

Motion for Summary Judgment by Defendants East Side Union High School District and Pablo Borceguin

On or about October 15, 2013, defendant Kanthi Kotha (“Kotha”) was operating a 2008 Honda Odyssey (“Vehicle”) at or near the intersection of Delta Road and Ruby Avenue in San Jose. (Complaint, ¶5.) Plaintiff Ravi Sharma (“Sharma”), a minor at the time, was participating in a school-sponsored cross-country practice as a student at Evergreen Valley High School. (Complaint, ¶6.) Plaintiff Sharma was operating a self-propelled wheelchair within the marked crosswalk at the intersection of Delta Road and Ruby Avenue in San Jose, crossing Delta Road. (Id.) Defendant Kotha negligently owned, operated, maintained, and controlled the Vehicle that struck plaintiff Sharma causing plaintiff Sharma to suffer and sustain injuries. (Complaint, ¶¶7 – 8.)

At the time of the incident, plaintiff Sharma, a member of the Evergreen Valley High School cross-country team was participating in a mandatory practice under the direct supervision, management, and control of defendant East Side Union High School District (“District”) and its agents and employees, including defendant Pablo Borceguin (“Borceguin”). (Complaint, ¶17.) Plaintiff was following the directions, instructions, guidance, practice plan, and route established by defendants. (Complaint, ¶19.) Defendants District and Borceguin were negligent in conducting a mandatory practice without sufficient/ adequate supervision; failing to anticipate/ protect against foreseeable traffic; selecting a route without placing safeguards to warn drivers of students’ presence; failing to provide trained supervision, et al. (Complaint, ¶22.) As a result of defendants District and Borceguin’s recklessness, negligence, and carelessness, plaintiff Sharma was struck by the Vehicle while participating in a mandatory school-sponsored activity. (Complaint, ¶23.)

On May 2, 2014, plaintiff Sharma filed a complaint against defendants Kotha, District, and Borceguin asserting causes of action for:

(1) Negligence
(2) Governmental Liability – Breach of Special Relationship

On June 6, 2014, defendant District filed an answer to the complaint and also filed a cross-complaint against defendant Kotha for total and/or partial and/or comparative equitable indemnity and contribution. On June 7, 2014, defendant Borceguin filed an answer to the complaint. On August 19, 2014, defendant Kotha filed an answer to the complaint. On September 19, 2014, defendant Kotha filed an answer to defendant District’s cross-complaint.

On February 4, 2016, defendants District and Borceguin filed this motion for summary judgment. On April 21, 2016, plaintiff Sharma filed opposition. Also on that date, defendant/cross-defendant Kotha filed a separate opposition.

II. Defendants District and Borceguin’s motion for summary judgment is DENIED.

A. Written Release – Advance Waiver of Liability.

“A defendant … has met his or her burden of showing that a cause of action has no merit if that party has shown … that there is a complete defense to that cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) In moving for summary judgment, defendants District and Borceguin contend there is a complete defense to plaintiff Sharma’s cause of action based on the existence of a written release.

A written release may exculpate a tortfeasor from future negligence or misconduct. [Citation.] To be effective, such a release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties.” [Citation.] The release need not achieve perfection. [Citation.] Exculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy. [Citations.]

The determination of whether a release contains ambiguities is a matter of contractual construction. [Citation.] “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing. [Citations.] An ambiguity can be patent, arising from the face of the writing, or latent, based on extrinsic evidence.” [Citation.] The circumstances under which a release is executed can give rise to an ambiguity that is not apparent on the face of the release. [Citation.] If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter. [Citation.]

In the absence of extrinsic evidence, the scope of a release is determined by the express language of the release. [Citation.] The express terms of the release must be applicable to the particular negligence of the defendant, but every possible specific act of negligence of the defendant need not be spelled out in the agreement. [Citation.] When a release expressly releases the defendant from any liability, it is not necessary that the plaintiff have had a specific knowledge of the particular risk that ultimately caused the injury. [Citation.] If a release of all liability is given, the release applies to any negligence of the defendant. “ ‘It is only necessary that the act of negligence, which results in injury to the releasor, be reasonably related to the object or purpose for which the release is given.’ ” [Citation.] The issue is not whether the particular risk of injury is inherent in the recreational activity to which the release applies, but rather the scope of the release. [Citations.]

(Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1356-57.)

Defendants District and Borceguin proffer evidence that plaintiff Sharma asked if he could join the cross-country team and was told he could and thereafter filled out the forms to participate with the team. Plaintiff Sharma participated in sports at Evergreen Valley High School beginning his freshman year. Each year, plaintiff Sharma had to fill out some paperwork, get medical clearance from a doctor, and sign a release. Plaintiff Sharma’s father also signed the liability release. Prior to participating in cross-country his senior year, plaintiff Sharma and his father signed a “Waiver of Liability Notice” on August 25, 2013. Plaintiff Sharma looked over the Waiver of Liability Notice and talked to his father about it before he submitted it to the defendant District. Plaintiff Sharma understood that, by signing the document, he could not sue the school if something happened to him. Plaintiff Sharma and his parents had previously signed liability waivers for other high school sports.

The Waiver of Liability Notice includes the following provisions:

Cross country, by its very nature, poses a greater than average risk of a participant being seriously injured. These injuries include, but are not limited to fractures, unconsciousness, paralysis, disfigurement, head injuries, and possibly death.

All participants in this activity should understand that participation in this activity is voluntary and is not required by the East Side Union High School District.

For an in consideration of permitting Ravi Sharma to enroll in and participate in cross country and class instruction of coaches given by East Side Union High School District .. waives and relinquishes any and all actions or causes of action for personal injury, engaging or receiving instructions in said activity or any activities incidental whereto wherever or however the same may occur or continue and the Undersigned does for himself … hereby release, waive, discharge and relinquish any action or cause of action…

Under no circumstances will he or his estate … prosecute, present any claim for personal injury against East Side Union High School District or any of its officers, agents, or employees for any of said causes of action, whether the same shall arise by the negligence of any said persons or otherwise.

IT IS THE INTENTION OF RAVI SHARMA BY THIS INSTRUMENT TO EXEMPT AND RELIEVE EAST SIDE UNION HIGH SCHOOL DISTRICT FROM LIABILITY FOR PERSONAL INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE.

The undersigned acknowledges that he/she has read the Waiver of Liability Notice and the foregoing three (3) paragraphs, has been fully and completely advised of the potential dangers incidental to engaging in the activity and instructing of potential dangers incidental to engaging in the activity and instructing of cross-country, and is fully aware the legal consequences of signing the within instrument.

(See Defendants’ SSUF, Fact Nos. 51 – 56.)

Defendants do not rest on the written release alone. Defendants themselves acknowledge and anticipate an argument from plaintiff that a written release is only effective against a claim for ordinary negligence; a written release is ineffective if the plaintiff can establish gross negligence or aggravated misconduct.

A release cannot absolve a party from liability for gross negligence. (Santa Barbara, supra, 41 Cal.4th at pp. 750–751, 776–777, 62 Cal.Rptr.3d 527, 161 P.3d 1095.) In Santa Barbara, our high court reasoned that “the distinction between ‘ordinary and gross negligence’ reflects ‘a rule of policy’ that harsher legal consequences should flow when negligence is aggravated instead of merely ordinary.” (Id. at p. 776, 62 Cal.Rptr.3d 527, 161 P.3d 1095, citing Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 871, 118 P.2d 465.) A liability release, “to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.” (Santa Barbara, at p. 751, 62 Cal.Rptr.3d 527, 161 P.3d 1095.)

(Jimenez v. 24 Hour Fitness USA, Inc. (2015) 237 Cal.App.4th 546, 554-55.)

“ ‘Ordinary negligence’—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm. [Citation.] ‘Gross negligence’ long has been defined in California and other jurisdictions as either a ‘want of even scant care’ or ‘an extreme departure from the ordinary standard of conduct.’ [Citation.]” (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 753-54 (Santa Barbara).) “Gross negligence connotes such a lack of care as may be presumed to indicate a passive and indifferent attitude toward results.” (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 640; punctuation and citation omitted.)
Significantly here, a determination of whether gross negligence exists is normally a question of fact. “Generally it is a triable issue of fact whether there has been such a lack of care as to constitute gross negligence [citation] but not always. [Citation.]” (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 358; see also Santa Barbara, supra, 41 Cal.4th at p. 767.)
Defendants District and Borceguin contend there is no evidence to support a finding of gross negligence in this case. Defendants proffer evidence that for at least five years prior to the incident, the subject cross-country route to and from Montgomery Hill Park had been used by the Evergreen Valley High School cross-country team. Before this accident and even now, defendant Borceguin did not/ does not believe it was dangerous for high school cross-country team members to practice on the subject route. The subject route is in a residential area along a sidewalk adjacent to Ruby Avenue, a two-lane road with a 25 mile per hour speed limit.
Participation in high school cross-country practices at Evergreen Valley High School requires team members to run (or wheel) on sidewalks adjacent to residential streets near the school and to cross roadways, a standard practice in the Bay Area. Cross-country practice requires team members to run long distances each day (up to eight miles), so it is impracticable to practice on a 400 meter track.

During the 2013 cross-country season, defendant Borceguin instructed plaintiff and other team members regarding safety procedures, including street safety. Defendant Borceguin instructed plaintiff and other team members to respect traffic signals and the walk/ don’t walk signals; not to run into any intersections without heeding traffic conditions; and to use crosswalks when crossing roadways.

During his junior year, plaintiff’s coach explained that their practices would take them on a route down Ruby Avenue and other routes they would use during practice. Plaintiff’s coaches instructed him and other students to use the buddy system, i.e., stay within a few paces of each other.

Based on the above facts, defendants District and Borceguin contend they did not act with gross negligence. In opposition, plaintiff proffers a number of facts, but several facts which this court finds to be dispositive of this motion. Specifically, during the 2013 cross-country season, defendant Borceguin and Joseph Te (Evergreen Valley High School Athletic Director; hereafter, “Te”) had a single conversation concerning plaintiff Ravi’s participation on the team. During that conversation, Te recommended plaintiff Sharma only be a manager on the team and defendant Borceguin agreed. In fact, defendant Borceguin initiated the discussion by representing to Te that plaintiff would be a manager on the team. However, when defendant Borceguin made this representation to Te, defendant Borceguin had already taken plaintiff Ravi out with the team multiple times. Plaintiff Sharma was unique in Te’s career as Athletic Director as plaintiff was the only student with disabilities to participate in regular school sports. After the incident, Te was surprised to learn that Borceguin had been taking plaintiff out with the team, contrary to his understanding. This fact “absolutely” caused Te concern.

This evidence creates a triable issue of material fact as to whether defendants engaged in gross negligence and/or aggravated misconduct. The plaintiff’s evidence demonstrates defendant Borceguin’s concealment and/or intentional misrepresentation of the fact that plaintiff had been practicing with the cross-country team. This creates a reasonable inference that defendant Borceguin sought to avoid an obligation or necessary prerequisite in order for plaintiff Sharma’s participation on the cross-country team. A trier of fact could reasonably conclude these facts amount to an extreme departure from the ordinary standard of conduct.

B. Primary Assumption of Risk.

As a separate basis for summary judgment, defendants District and Borceguin rely on the primary assumption of risk doctrine. Primary assumption of risk generally absolves the defendant of a duty of care toward the plaintiff with regard to injury incurred in the course of a sporting or other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320; see also CACI, No. 409.)

“As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315, citing Cal. Civ. Code § 1714, subd. (a).) However, “some activities—and, specifically, many sports—are inherently dangerous.” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154.) “[W]here, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine [of assumption of risk]… operate[s] as a complete bar to the plaintiff’s recovery.” (Knight, supra, 3 Cal.4th at pp.314-315; see also Ford v. Gouin (1992) 3 Cal.4th 339, 342 (companion case to Knight); see also Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 (stating that “[p]rimary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk does bar recovery because no duty of care is owed as to such risks”), citing Knight, supra, 3 Cal.4th at 314-316; see also Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228 (stating that “‘assumption of risk’ can be a complete defense to a claim of negligence”); see also Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, “[p]rimary assumption of risk is a complete bar to recovery”; also stating “[t]he doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself’ and their removal would alter the nature of the sport”; also stating that “[t]he doctrine is based on the commonsense conclusion that where a person is playing an active sport, others involved in the activity should not be liable for injuries caused by risks that are an inherent part of the sport unless the defendant’s conduct has increased the risk of harm”); see also Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (stating that “[p]rimary assumption of risk, when applicable, completely bars the plaintiff’s recovery”; also stating that “[t]his general rule… [that] persons have a duty to use due care to avoid injury to others… does not apply to coparticipants in a sport, where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself”); see also Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1219 (stating that “when the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability”).)

The primary assumption of risk doctrine, however, looks not just at the nature of the sport, but also takes into consideration the role the defendant plays. “But the question of duty depends not only on the nature of the sport, but also on the ‘role of the defendant whose conduct is at issue in a given case.’ [Citation.] Duties with respect to the same risk may vary according to the role played by particular defendants involved in the sport.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) Here, as defendants point out, plaintiff’s claim is based principally upon defendants’ role as coach or instructor.

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, 4 Cal.Rptr.3d 103, 75 P.3d 30.) 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. (Tan, supra, 13 Cal.App.4th at pp. 1535–1536, 17 Cal.Rptr.2d 89; Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th at p. 755, 33 Cal.Rptr.2d 732.) [Footnote.]
(Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845.)

Here, the court finds the same evidence cited above creates a triable issue of material fact. The plaintiff’s evidence in opposition demonstrates defendant Borceguin’s concealment and/or intentional misrepresentation of the fact that plaintiff had been practicing with the cross-country team. A trier of fact could reasonably conclude these facts amount to reckless conduct or conduct outside the range of the ordinary activity involved in teaching or coaching the sport.

Accordingly, defendants District and Borceguin’s motion for summary judgment is DENIED.

The court acknowledges defendant/cross-defendant Kotha’s filed opposition, but in view of the ruling above, the court need not consider defendant/cross-defendant Kotha’s opposition and declines to rule on defendant/ cross-defendant Kotha’s request for judicial notice or evidentiary objections.

In reply, defendant District and Borceguin filed objections to evidence cited in plaintiff’s separate statement of disputed material facts. Defendant District and Borceguin’s evidentiary objections fail to comply with California Rules of Court, rule 3.1354, subd. (b). Moreover, the court did not deem the subject evidence to be material to its ruling and, therefore, declines to rule on defendant District and Borceguin’s objections. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)