The Misinterpretation of Knight v. Jewett

1. The Misinterpretation of Knight v. Jewett Linda Sharp, University of Northern Colorado Peg Ciccolella, University of the Pacific

2. The Problem • Are California courts misinterpreting the important precedent of Knight v. Jewett in regard to the “no-duty” analysis in the sport/physical activity context? No duty=primary assumption of risk for inherent risks of activity

3. Knight v. Jewett (Cal. 1992) Issue What duty, if any, is owed to a coparticipant in an active sport?

4. Facts of Knight v. Jewett • Recreational touch FB game • Men and women playing • Female P injured by rough play of coparticipant • Coparticipant stepped on P’s hand and finger • P sued based on negligence

5. Knight Holding by Cal. Supreme Court • The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed. •  The court affirmed dismissal of plaintiff's tort claim for negligence, holding that it was barred by the primary assumption of risk doctrine for ordinary, careless conduct during a sports activity.

6. Knight rationale • The question of the existence and scope of a defendant's duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties' general relationship to the activity, and is an issue to be decided by the court, rather than the jury.

7. Knight rationale (cont) • Seminal case regarding duty of care owed by sports coparticipants • Liability only for intentional misconduct or reckless disregard • Players assume the risk of dangers from “vigorous participation” • To impose a duty here would cause a basic alteration of the sport

8. Knight rationale (cont) • The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport

9. Knight rationale (cont) • In the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. Vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct • Even when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity

10. Kahn v. East Side Union High School District, 75 P. 3d 30 (Cal. 2003) • Should the rationale of the Knight case be extended to the realm of coaching and instruction to essentially immunize a coach or teacher from the consequences of his/her negligent behavior?

11. Facts of the Kahn case • 14 year-old novice member of j.v. swim team • Suffered a broken neck as she did a practice dive into a shallow racing pool • Student had a fear of diving • Coach promised her she did not have to dive at meets

12. Facts of the Kahn case (cont) • On day of injury coach told student she had to dive or not swim in relay race • Student sustained injury while practicing dive from starting blocks with other team members • Dives into racing pools carry significant risk of injury • Fact issue as to type of diving instruction provided at practice

13. The Legal Claims • Negligent instruction regarding diving • Negligent supervision • Negligence by coach in insisting student dive despite fear, lack of expertise, previous promise that she would not have to dive

14. Lower Court Holding • Granted summary judgment for coach and school district • Under doctrine of assumption of risk, no liability unless • “elevated risks inherent in competitive swimming” OR • “had behaved recklessly”

15. Court of Appeals’ Decision • Affirmed summary judgment • Doctrine of primary assumption of risk barred claim • Shallow-water diving is a danger that is inherent in competitive swimming

16. California Supreme Court • Reversed and remanded • Adopted the “reckless disregard” standard for coach’s liability • Coach’s negligence considered to be inherent risk of sport • Remand to consider whether coach acted with “reckless disregard” in this case

17. Kahn rationale • Question of duty depends on role of defendant • Cases post-Knight held that instructor/coach generally does not increase inherent risks of sport simply by urging student to strive to excel or to reach a new level of competence • Court is concerned about “chilling effect” the imposition of a duty of care here would have on enterprise of teaching and learning

18. Kahn Rationale (cont) • To recognize a duty of care here would tend to alter nature of activity or chill vigorous participation • Participants need instruction to compete • Part of coaches’ role is to challenge or “push” a student to advance • Do not want to inhibit adequate instruction and learning

19. Kahn Rationale (cont) • In cases alleging sports instructor has required student to perform beyond capacity or without adequate instruction need to show: • Intentional action OR • Reckless action “totally outside the range of the ordinary activity” involved in teaching or coaching the sport (p.43)

20. Ohman v. Bd. of Educ. N.Y. 90 N.E.2d 474 (N.Y. 1949) • Parents do not send their children to school to be returned to them maimed because of the absence of proper supervision or the abandonment of supervision. Id. at 476.

21. Other cases adopting Kahn rationale • Schweichler v. Poway Unified Sch. Dist. (App. Div. 2005) • HS student injured during wrestling practice • Coach incorrectly positioned student as coach demonstrated wrestling move • Court used Kahn rationale • A cause of action against a coach cannot be based on mere negligence

22. Other cases adopting Kahn rationale • Baltierra v. Corona-Norco Unified Sch. Dist. (App. Div. 2006) • HS FB player injured in weightlifting class • Coach required players to do “one repetition maximum squat lift” • Player sustained serious back injuries • To hold coach liable for injury here would “inhibit HS FB by chilling vigorous participation in the activity” • Action barred under primary A/R

23. ROSTAI v. NESTE ENTERPRISES 138 CAL.APP.4TH 326 (2006) Issue: Does primary assumption of risk apply to a personal fitness trainer supervising exercise?

24. Rostai Facts: • P hires “certified” trainer for fitness program. • P is 46, male, sedentary, and overweight. • 1st workout, P feels fatigue, heat, thirst, chest pain. • P repeatedly asks to stop. Workout continues. • MI ensues. Emergency stent surgery later that day.

25. Rostai Plaintiff’s COA Negligence of personal trainer Duty? To investigate P’s health history, current condition, & cardiac risk factors. Breach? Trainer’s failure caused the heart attack to occur under his supervision.

26. Rostai Defense: Primary Assumption of Risk Apply Doctrine if: Imposing a duty in activities with inherent risks changes its purpose . . .“alters” and “chills”. Consider: 1. nature of the activity. 2. role of D.

27. Rostai Court’s Analysis Activity? Fitness training is an activity. Student-instructor relationship. Role of Trainer . . .challenge the student beyond current fitness levels.

28. Rostai Court’s Analysis Inherent Risks? Trainer will not accurately assess fitness level. Student will not be able to meet instructor’s challenge. Various injuries, including a heart attack.

29. Rostai Court’s Findings • At most, trainer did not accurately assess P’s fitness. • P’s symptoms during workout? Could be interpreted as poor conditioning rather than symptoms of MI. • No evidence of intent or reckless conduct. • No evidence of increased risk.

30. Rostai Court’s Findings Therefore, no duty to protect against heart attack during exercise. Affirm MSJ for D.

31. HEMADY v.LONG BEACH UNIFIED SCH. DIST.143 CAL.APP.4TH 566 (2006) Issue: What standard of care governs injuries occurring in a middle school golf class? Primary assumption of risk apply? Limited duty? or Prudent Person Standard of Care?

32. Hemady Facts: • Classmate swings golf club during 7th grade P.E. class and hits P in the mouth. • Teeth knocked out, jaw shattered. Plastic surgery to repair disfigured face. • D swung club w/o trying to hit ball. • D ignored teacher’s instructions. • COA: Negligent supervision of instructor.

33. Hemady COURT’S ANALYSIS: Nature of the activity? A 7th grade golf class is instructional, mandatory, and non-competitive. Inherent risks? Being hit in the head by a golf club is not an inherent risk of the game. Especially in a 7th grade class.

34. Hemady COURT’S ANALYSIS: “Alter” or “Chill”? Imposing upon golfers the obligation to look before swinging: 1. does not require a fundamental alteration of the game. 2. does not discourage competition or vigorous participation. 3. does not chill a coach or instructor’s role to challenge students to hit further or more accurately.

35. Hemady Court’s Analysis: • Policy considerations of Knight and Kahn not applicable under these circumstances. • Therefore, application of prudent person standard. • Rev MSJ for D and Remand.

36. QUESTIONS/PROBLEMS Do circumstances matter? Competitive sports/co-participants Instructional activities/teacher-student Conduct based upon “in the moment” decisions v. deliberate design? Voluntary v. mandatory activities? Special qualifications, e.g., “certified” trainer? Organizational standards re conduct?

37. QUESTIONS/PROBLEMS (cont) • Matter of fact for jury or matter of law for court? • Interpretation gives immunity for negligent behavior? Reasonable care under the circumstances? Christian v. Rowland