Sharon Carlson vs. El Camino Junior Eagles
Nature of Proceeding:
Filed By:
Motion for Summary Judgment
Barnes, Heather A.

Defendants’ Motion for Summary Judgment is denied.

Defendant’s Evidentiary Objections are overruled.

On September 27, 2011, Plaintiff Joshua Sigler was injured during football practice with the El Camino Junior Eagles when he was tackled by four other players. Coach Haynes had become frustrated with Joshua’s repeated failure to comply with instructions not to collide with the quarterback during practice scrimmages. Coach Haynes wanted to teach Joshua “a lesson” so he would know how it felt to be hit by linemen as the quarterback. Coach Haynes had previously told Joshua 50 times in two years not to make contact with the quarterback during scrimmages. (Haynes Depo. 60-61) Joshua had just hit the quarterback’s wrist in a practice play. Frustrated by Joshua’s repeatedly ignoring his directions, Coach Haynes directed Joshua to play quarterback and instructed the offensive line to let the defense run through as a teaching technique. (UMF 27) Another coach, McWatters, stated that Haynes told Joshua “How would you like to get hit?” He also heard Haynes tell the head coach that “I told them not to block.” (McWatters Depo page 21, 24) Four defensive linemen tackled Joshua. He alleges he sustained a concussion and a dislocated shoulder as a result of the incident. Sharon Carlson, Joshua’s mother executed a Release in which she assumed the risk of all injuries arising out of the negligence of the releasees. (Ex. 8 to Declaration of Barnes)

Plaintiffs allege two causes of action, one on behalf of Joshua, and the second cause of action on behalf of his mother Sharon Carlson.

Defendants seek summary judgment on two alternative grounds: That the Release signed by Carlson bars the action, and on the ground that the claims of negligence are barred by the doctrine of assumption of the risk.

Assumption of the Risk

In Kahn v East Side Union High School District (2003) 31 Cal.4th 990, the court found that the assumption of risk doctrine did not bar a claim for damages that occurred after a new member of the swim team was told by the coach to make a racing dive in shallow water when she had not been instructed on how to do so, and after the coach had previously told her she would not have to participate in the meet. Instructors or coaches can be liable for intentional assault or other “reckless conduct that is totally outside the range of the ordinary activity involved in the sport.” Knight v Jewett (1992) 3 Cal.4th 296, 318, 320; Kahn v East Side Union High School District (2003) 31 Cal.4th 990, 1012-1013.

Although being tackled in football is an inherent risk in the sport, if the coach’s instruction, as in
Kahn, unreasonably increases the risk of the sport, the doctrine of assumption of risk would not apply.

The Court finds that, viewing the evidence most favorably to plaintiff, that there is a triable issue of material fact as to whether Coach Haynes unreasonably increased the risks involved in playing football if he told the offensive line to let the defensive line run through. A trier of fact could infer from evidence submitted by plaintiff that the coach acted with gross negligence and or intent to injure in conducting a drill which was contrary to the practice rules of not hitting the quarterback, but instead, made the quarterback, Joshua, a “tackling dummy.” The role of the offensive line is to protect the quarterback, not to stand still while the defensive line sacks the quarterback. While “sacks” do occur, they do not occur because the offensive line fails to attempt to protect the quarterback; instructions to “stand back” and let the entire defensive line hit the quarterback is not part of the sport. Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Knight, supra, at pp. 315-316.

Release

The standards which a release must meet are well established. To be effective, a release need not achieve perfection. Thus, as long as the release constitutes a clear and unequivocal waiver with specific reference to a defendant’s negligence, it will be sufficient. For it to be valid and enforceable, a written release exculpating a tortfeasor from liability for future negligence or misconduct must be clear, unambiguous and explicit in expressing the intent of the parties. If a tortfeasor is to be released from such liability the language used must be clear, explicit and comprehensible in each of its essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement. Paralift Inc. v Superior Court (1994) 23 Cal.App.4th 748, 755.

Future liability for ordinary or simple negligence generally may be released.

Ordinary negligence 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.

Such releases have been frequently upheld in the context of sports and recreation programs. However, an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.

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. The principal rationale for refusing to enforce releases of liability for future gross negligence is that public policy should discourage (or at least not facilitate) aggravated wrongs. Thus, an agreement that would remove a party’s obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct, is unenforceable as against public policy. Eriksson v Nunnik (2011) 191 Cal.App.4th 826, 855. The California Supreme Court has held that any agreement “purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy.” City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747, 751.

Defendants concede that if the defendants intentionally or recklessly increased the risk, such as ordering the removal of helmet and pads before the play, the release would not apply. (Reply page 4, lines19-21) The Court perceives no real difference in terms of increasing the risk between telling the offensive line not to block and telling the quarterback to remove the helmet. Both acts potentially increase the risk of injury.

A release of liability for negligence does not apply to claims of gross-negligence. Eriksson v Nunnik (2011) 191 Cal.App.4th 826, 830 (horse trainer recommending an unfit horse was not covered by release); Rosencrans v Dover Images Ltd. (2011) 192 Cal.App.4th 1072 (defendant failure to provide caution flaggers raised triable issue as to gross negligence, release then would not apply).

Because of the drastic nature of the summary judgment procedure and the importance of safeguarding the adverse party’s right to a trial, the moving party must make a strong showing. Silva v Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261. The moving party’s evidence is strictly construed and the opposing party’s evidence is liberally construed, resolving any doubts as to the propriety of granting the motion in favor of the opposing party. Kulesa v Castleberry (1996) 47 Cal.App.4th 103, 112.

The prevailing party is directed to prepare a formal order complying with C.C.P. §437c(g) and C.R.C. Rule 3.1312.