Judge: Jill Feeney, Case: 19STCV33972, Date: 2023-03-06 Tentative Ruling

Case Number: 19STCV33972    Hearing Date: March 6, 2023    Dept: 30

Department 30, Spring Street Courthouse
March 6, 2023
Motion for Summary Judgment filed by Defendant University of Southern California


The motion is denied.

Moving party to provide notice. 


This is an action for premises liability arising from a football accident which took place in September 2017. Plaintiff Harrison Roth filed his Complaint against Defendants the University of Southern California (“USC”).

Defendant filed its motion for summary judgment on February 2, 2022.


Moving Arguments

Defendant moves for summary judgment, or in the alternative, summary adjudication, on the grounds that (1) Plaintiff’s negligence cause of action is barred by the release and waiver he executed and (2) Plaintiff’s negligence cause of action is barred under the doctrine of primary assumption of the risk.

Opposing Arguments
Plaintiff argues that his claim is not barred by the release and waiver he executed because the waiver did not include Cromwell Field where Plaintiff was injured. Plaintiff also argues that the claim is not barred by primary assumption of the risk because USC had a legal duty of care not to increase the risks to a participant over and above those inherent in the sport.

Reply Arguments

None filed.

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(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.” (Ibid.) “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(c).) 

Evidentiary Objections

Plaintiff objects to the evidence USC provided in support of its motion. 

The following objections are overruled: 1-13.


The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th  at p. 36.) 

Because the owner is not the insurer of the visitor’s personal safety…, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Ibid.) The party asserting the cause of action has the burden to prove that the owner had actual or constructive notice of the dangerous condition in sufficient time to correct it.¿ (Ortega, 26 Cal.4th at 1203, 1206.)

For an express release of liability to be enforceable against a plaintiff (1) the release agreement “must be clear, unambiguous and explicit in expressing the intent of the parties (citation omitted);” (2) the injury-producing act “must be reasonably related to the object or purpose for which the release is given (citation omitted); and (3) the release cannot contravene public policy.”  (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-5.)  A release must not be buried in a lengthy document, hidden among other verbiage, or so encumbered with other provisions as to be difficult to find.  (Leon v. Family Fitness Center (No. 107), Inc. (1998) 61 Cal.App.4th 1227, 1232 (citing Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485, 1489).) 

Here, USC’s evidence shows that on the date of the incident, Plaintiff was playing touch football at Cromwell Field at the University of Southern California with members of his fraternity. (UMF No. 1.) Plaintiff had been to Cromwell field at least twenty times to play two-hand touch football, soccer, and to throw a ball. (UMF No. 3.) On the date of the incident, Plaintiff was running to catch a ball, went backwards, and caught the ball above his head. (UMF No. 4.) After catching the ball, Plaintiff landed fully on his back and his head snapped back, slamming against a pole vault cover that was on the track next to the field. (UMF Nos. 5-6.)  

USC provides the release and waiver signed by Plaintiff in September 2017. The release states:

“I recognize that the use of USC recreational facilities, including the Lyon Recreation Center, Uytengsu Swim Stadium, USC Village Fitness Center, and HSC Fitness Center, and all equipment and facilities contained therein (collectively, the "Recreational Facilities"), have inherent risks of injury. For and in consideration of the University of Southern California permitting me to use the Recreational Facilities, I, my spouse, assignees, heirs, guardians, and legal representatives hereby voluntarily indemnify, release from liability, agree to defend and hold harmless USC and its officers, trustees, employees, agents, representatives, and any department, organization or group affiliated there with (collectively "USC") for any accident, injury, illness, death, loss, theft, damage to person or property, or other consequences suffered by me arising or resulting directly or indirectly from my use of the Recreation Facilities, including but not limited to claims arising from or related to USC's negligence and/or products liability, including strict products liability. In the event that I am injured, I agree to assume any financial obligation, either through my health insurance, or through some other means, for any medical costs that I incur. USC assumes no responsibility for any medical expenses, injury, or damage suffered by me in connection with my use of the
Recreation Facilities.”

(USC Compendium, Exh. B.) USC also provides the declaration of Sara Montgomery, the Assistant Director of Recreational Sports at USC. (Montgomery Decl., ¶3.) In order to access recreational facilities at USC All registered USC students must execute an electronic Release and Waiver of Liability. (Id., ¶4.) Students execute the release either online prior to coming to USC or by using an electronic tablet upon entering a facility. (Id., ¶6.) 

Plaintiff’s deposition transcript also shows that he did not sign any paperwork before going to the field:

“Q: Okay. Now, did you have to sign any paperwork prior to going on the field that day –
A: No.
Q: -- in terms of using the field?
A: No.
Q: Okay. Do you recall if you had to make any reservations to use the field on the date of the incident?
A: I don’t believe so. I didn’t make the reservation, but I doubt they made a reservation for it.”

(Roth Depo., 105:2-12.)

The scope of the release includes Plaintiff’s use of USC recreational facilities, including the Lyon Recreation Center, Uytengsu Swim Stadium, USC Village Fitness Center, HSC Fitness Center, and all equipment and facilities contained in those facilities. The document itself is labelled as the release and waiver “for the use of the Lyon Recreation Center, Uytengsu Swim Stadium, USC Village Fitness Center, and HSC Fitness Center.” The release does not appear to include Cromwell Field among the re creational facilities covered by the release. USC provides no evidence that Cromwell Field is a facility contained within the recreational facilities covered by the release. Plaintiff was also not required to sign any paperwork before using the field, nor was he required to make a reservation before using the field. 

The evidence shows that the release Plaintiff signed in September 2017 did not encompass Plaintiff’s use of Cromwell field. There is no evidence that Plaintiff intended to waive his right to sue with respect to injuries sustained on Cromwell Field. 

USC contends that the general language of recreational facilities covered Cromwell. However, To be effective, a release must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. In determining a waiver’s scope, “California courts require a high degree of clarity and specificity in a Release in order to find that it relieves a party from liability for its own negligence.” (Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488.) Any ambiguity in the scope will be construed against the drafter. (Cal. Civ. Code § 1654.) “An ambiguity exists when a party can identify an alternative, semantically reasonable, candidate of meaning of a writing.” (Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360) (citation omitted). Ambiguities can be patent (arising from the face of the writing) or latent (based on extrinsic evidence.). (Solis, 94 Cal.App.4th at 360; Benedek v. PLC Santa Monica, LLC (2002) 104 Cal.App.4th 1351, 1357.) Here, there is certainly an ambiguity as to whether Cromwell Field is covered by the release and that ambiguity must be construed against Defendant.  

Here, USC fails to meet its burden of showing no triable issues of material fact as to whether Plaintiff’s claim is barred by the release he signed in September 2017.
Primary Assumption of the Risk

USC next argues that Plaintiff’s claim is barred under the doctrine of primary assumption of the 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 [“[p]rimary 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. . . . 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.” (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866 (citing Knight v. Jewett (1992) 3 Cal.4th 296, 313).) 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, 133 Cal.App.4th at p. 867.)

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].) 

Courts have ruled that owners and operators of sports facilities owe a duty of care to participants not to design or operate sports facilities in a manner that increases the risk of harm to them beyond that inherent in the sport. (Luna v. Vela (2008) 169 Cal.App.4th 102, 110.) For example, the owner of a golf course has a duty to design its course in a manner that does not increase the risk of participants being struck by misguided golf balls. (Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 132.) The party who moves for summary judgment has the burden of proving both that a plaintiff’s injury is inherent to the activity they were engaged in and that the moving party’s conduct did not increase the risk of harm to the participants. (Luna v. Vela (2008) 169 Cal.App.4th 102, 112 (citing Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.).)

Here, USC is the owner of Cromwell Field and thus had a duty not to design or operate the facility in a manner that increases the risk of harm to users of the facility. Because falling and sustaining head injuries is a risk inherent to the sport of touch football, USC’s motion turns on whether its conduct increased the risk of Plaintiff injuring his head. USC argues that the cover at issue did not increase the risk of falling on a hard surface and that there is no evidence that USC did or failed to do anything that caused Plaintiff to fall and come into contact with the cover at issue. However, USC fails to provide any evidence that the cover did not increase the risk of Plaintiff sustaining head injuries. As the party moving for summary judgment on this issue, USC had the burden of proving its conduct did not increase the risk of harm to Plaintiff. USC thus fails to meet its burden of showing there are no issues of material fact over whether Plaintiff’s claim is barred under the doctrine of primary assumption of the risk.

Even if USC did meet its burden of proof, Plaintiff provides evidence showing there is a triable issue of material fact over whether USC’s design and operation of Cromwell field increased the risk of harm to Plaintiff. Plaintiff provides the declaration of civil engineer Brad P. Avrit, who testifies that he personally inspected the field and took measurements of the relevant area. (Avrit Decl., ¶7.) Avrit opines that the pole vault cover was a dangerous condition because it was 2 feet away from the sidelines of the playing field. (Id., ¶8.) The cover was hard and made of precast concrete with a thin layer of tartan rubber that may have been ajar at the time of the incident. (Id.) Avrit opines that the cover is in violation of NCAA regulations, which state that pole vault box covers should have a cover which has the same synthetic surface as the runway, does not move when run on, and is level and flush with the ground. (Id.) On the date of the incident, the cover was not flush with the track top and Plaintiff’s head struck the side of the box, which had an exposed edge that was metallic. (Id., ¶9.) USC also failed to install a thick enough layer of tartan over the cover and ensure that the cover was flush with the ground to adequately protect athletes who fall there from sustaining serious injuries. (Id., ¶10.) Finally, Avrit opines that the pole vault box is too close to the sidelines in violation of NCAA regulations requiring that safety margins not be less than six feet from the sidelines and endlines on football fields. (Id., ¶11.) Therefore, USC should have installed the pole vault box at least six feet outside the field’s sidelines. (Id., ¶12.) 

Avrit’s testimony demonstrates that there is a triable issue of material fact over whether USC’s design of the field and maintenance of the pole vault box cover increased the risk of harm to Plaintiff. Summary judgment is denied.