Judge: Lisa R. Jaskol, Case: 20STCV36739, Date: 2023-11-07 Tentative Ruling
Case Number: 20STCV36739 Hearing Date: November 7, 2023 Dept: 28
Having considered the moving, opposing and reply papers, the Court rules as follows.
PROCEDURAL BACKGROUND
On September 25, 2020, Plaintiff Casey Curley (“Plaintiff”) filed this action against Defendants Bonita Unified School District (“District”), Bonita High School (“High School”), Kelly O’Grady (“O’Grady”), Chae Mireles (“Mireles”), Justis Mireles-Torres (“Mireles-Torres”), and Does 1-50 for premises liability (Gov. Code, §§ 835, 840, Cal. Const., art. 1, § 28, subd. (c)) and failure of a school to provide adequate supervision of students (Cal. Const., article 1, § 28, subd. (c), Gov. Code, § 815.2, Cal. Code Regs. Title 5, § 5552, Cal. Educ. Code, §§ 44807, 49370).
On May 10, 2021, the District filed an answer. On May 27, 2021, O’Grady, Mireles, and Mireles-Torres filed an answer.
On January 3, 2023, the District, O’Grady, Mireles, and Mireles-Torres (“Moving Defendants”) filed a motion for summary judgment or, in the alternative, summary adjudication, to be heard on September 7, 2023. On August 24, 2023, Plaintiff filed an opposition. On August 30, 2023, Moving Defendants filed a reply. On September 13, 2023, Plaintiff filed a supplemental opposition. The Court continued the hearing on the motion to October 13, 2023. On October 13, 2023, the Court heard argument and continued the hearing to November 7, 2023.
Trial is currently scheduled for January 3, 2024.
PARTIES’ REQUESTS
Moving Defendants request that the Court grant summary judgment or, in the alternative, summary adjudication.
Plaintiff requests that the Court deny the motion.
EVIDENTIARY OBJECTIONS
Moving Defendants’ objections: Overruled
Plaintiff’s objections: Overruled
LEGAL STANDARD
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must view the evidence and the inferences reasonably drawn from it in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
DISCUSSION
A. The complaint
The complaint alleges the following:
On November 14, 2018, Plaintiff, a high school student, was at her cheerleading practice at Bonita High School. While practicing a new flying stunt routine, Plaintiff was thrown approximately eleven feet high. However, the “base” students did not catch Plaintiff. Plaintiff fell and landed on the hardwood flooring of the gym, sustaining serious injuries. The floor was not covered by mats and no safety measures to prevent injuries of this kind were in effect. After Plaintiff fell, she was picked up from the ground without first assessing her injuries, against concussion protocol.
The District and High School owned, operated, controlled, maintained and managed Bonita High School. O’Grady, Mireles, and Mireles-Torres were employees of the District and High School and were acting in the course and scope of their employment. At the time of the incident, O’Grady, Mireles, and Mireles-Torres failed to supervise Plaintiff.
B. Undisputed facts
On November 14, 2018, Plaintiff was a student at Bonita High School. Plaintiff was under the age of 18. The District owned and operated High School. O’Grady, Mireles, and Mireles-Torres were the District's employees.
Plaintiff had been practicing and performing as a “flyer” for a number of years before the incident. Plaintiff was aware there were risks associated with cheerleading, including the risk of falling and the risk of injury.
On November 14, 2018, Plaintiff was practicing a new stunt sequence with a new acro stunt group which was not composed of the same members with whom she was comfortable practicing and performing. At the time of Plaintiff’s fall, the stunt group was practicing a new stunt sequence which included a “lib” stunt. Plaintiff had practiced and performed a “lib” prior to November 14, 2018. However, she had not practiced and performed a “lib” with the new acro stunt group with which she was practicing a new stunt sequence that included a “lib” stunt on November 14, 2018.
At the time of Plaintiff’s fall, no mats covered the hardwood floor.
C. Motion for summary judgment or summary adjudication
1. Release
(express assumption of the risk)
a. Legal
authority
Moving Defendants argue Plaintiff’s action is barred by the express waiver and release signed by Plaintiff’s mother as a condition of Plaintiff's participation in cheerleading.
“ ‘[C]ontract principles apply when interpreting a release, and ... normally the meaning of contract language, including a release, is a legal question, not a factual question. [Citation.]” (Brown v. El Dorado Union High School Dist. (2022) 76 Cal.App.5th 1003, 1023 (Brown), quoting Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.)
“When an individual signs an express waiver of liability, he ‘promises not to exercise the right to sue for harm caused in the future by the wrongful behavior of a potential defendant, eliminating a remedy for wrongdoing.’ ” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7 (Coates).) “Similarly, in signing an express assumption of risk, ‘the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing. Both agreements permit behavior that normally would be actionable as tortious, although an express assumption of risk goes further, more clearly authorizing this behavior.’” (Ibid., quoting Coates, supra, 191 Cal.App.3d at pp. 7-8.)
“ ‘ “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone .... The result is that the defendant is relieved of legal duty to the plaintiff; and being under no duty, he cannot be charged with negligence.” (Prosser & Keeton on Torts [(5th ed. 1984)] § 68, pp. 480-481, fn. omitted, second italics added.)’ ” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Knight v. Jewett (1992) 3 Cal.4th 296, 338, fn. 4 (Knight).)
“ ‘[C]ases have consistently held that the exculpatory provision may stand only if it does not involve ‘the public interest.’ ” (Brown, supra, 76 Cal.App.5th at p. 1023, quoting Tunkl v. Regents of University of Cal. (1963) 60 Cal.2d 92, 96.) “Releases of negligence claims are not per se against the public interest.” (Ibid., citing Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354, 360.) “Similarly, ‘[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.’ ” (Id. at p. 1024, quoting Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356-1357 (Benedek).)
“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.’ ” (Brown, supra, 76 Cal.App.5th at p. 1024, citing City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 751.) “Thus, in the recreational context, while a waiver of liability and assumption of risk can serve as a bar to liability based on negligence, it cannot serve as a bar to liability based on gross negligence.” (Ibid.)
“ ‘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. The release must “clearly, explicitly and comprehensibly set forth to an ordinary person untrained in the law that the intent and effect of the document is to release his claims for his own personal injuries and to indemnify the defendants from and against liability to others which might occur in the future as a proximate result of the negligence of [the] defendants ....” ’ ” [Citation omitted.]” (Brown, supra, 76 Cal.App.5th at p. 1024, quoting Cohen v. Five Brooks Stable (2008) 159 Cal.App.4th 1476, 1488-1489, italics omitted.) “ ‘To be effective, a release need not achieve perfection; ... It suffices that a release be clear, unambiguous, and explicit, and that it express an agreement not to hold the released party liable for negligence. [Citation.]’ ” (Ibid., quoting Nat'l & Internat. Bhd. of St. Racers, Inc. v. Superior Court (1989) 215 Cal.App.3d 934, 938.)
In Brown, the release stated in part:
“In consideration for EDUHSD, allowing the above-named students to participate in the school-related activity/ies specified above, I/we voluntarily agree to release, waive, discharge, and hold harmless the EDUHSD and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student’s participation in the school-related activity/ies. I/We also expressly agree to release and discharge EDUHSD, its trustees, officers, employees, and agents from any act or omission of negligence in rendering or failing to render any type of emergency or medical services.”
(Brown, supra, 76 Cal.App.5th at p. 1010.)
The Court of Appeal affirmed the trial court’s order granting the defendant’s motion for summary judgment, observing that the release signed by the student’s father “covered all allegedly negligent acts by coaches, and any other employee or volunteer, while they were engaged in ‘coach[ing], train[ing], instruct[ing], or supervis[ing]’ in football” and “also applied to negligent acts by coaches, and any other employees or volunteers, involved in diagnosing and/or treating [the plaintiff] for potential injuries suffered while he was engaged in playing football.” (Brown, supra, 76 Cal.App.5th at p. 1024.)
b. The waiver/release
In support of Moving Defendants’ motion for summary judgment, Moving Defendants provided a declaration from Matthew Wien (“Wien”), the Interim Superintendent for the Bonita Unified School District (“District”). As custodian of records for the District, Wien was authorized to certify on the District’s behalf that the records attached to his declaration were true and complete copies of records maintained in the regular course and scope of the District’s business.
In his declaration, Wien stated that a true and correct copy of acknowledgements, releases, and waivers electronically signed by Plaintiff and her mother Natalie Curley on August 21, 2018 was attached to Wien’s declaration as Exhibit 1. Wien declared:
· The District maintains these documents in the regular course and scope of business.
· Plaintiff’s participation in cheerleading activities on November 14, 2018 came after Plaintiff and Natalie Curley signed the documents attached as Exhibit 1.
The waiver or release provides:
“PARENT/GUARDIAN CONSENT & VOLUNTARY SPORT/ACTIVITIE WAIVER
“I realize that this activity is voluntary as part of the Bonita Unified School District Extra-Curricular program(s). I am aware that participating in a school sport(s)/activity can be dangerous activity involving MANY RISKS OF SERIOUS ILLNESS AND/OR INJURYAND/OR DEATH. I understand that the dangers and risks of participating in a school sport(s) / activity include, but are not limited to: death, serious neck injury and spinal injuries that may result in complete or partial paralysis, brain damages, serious injury to any and all bones, joints, ligaments, muscles, tendons, other aspects of the muscular-skeletal system, any and all internal organs; serious injury and impairments to other aspects of the student's body, general health and well-being. I further understand that the dangers and risks of participating in a school activity and/or sport(s) may result in not only serious injury or death, but in a serious impairment of the student's future abilities to earn a living, engage in other business, social, employment and recreational activities and generally enjoy life. For and in consideration of the opportunity for my child/ward to try out for or participate in a school activity and/or sport(s), I assume all risks for illness, injury and/or death and do hereby agree to indemnify and hold harmless the Bonita High School and Bonita Unified School District, its officers, agents and employees, from any and all liability, claims, actions, loss, debt, or damage that may arise out of or in connection with my child's participation in a school activity and/or sport(s). In the event of illness or injury, I hereby consent to whatever x-ray, examination, anesthetic, medical, surgical, or dental diagnosis or treatment and hospital care are considered necessary in the best judgement of the attending physician, surgeon, or dentist and performed by or under the supervision of a member of the medical staff of the hospital or facility furnishing medical or dental services. California Education Code Section 35330 provides, in pertinent part as follows: ‘All persons making a field trip or excursion shall be deemed to have waived all claims against the district or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion’. I fully understand that participants are to abide by all rules and regulations governing conduct during athletic events and/or activities. Any violation of these rules and regulations may result in that individual being disciplined and/or sent home at his/her and/or parent/guardian's expense. I ASSUME ALL RISKS FOR ILLNESS AND/OR INJURY AND/OR DEATH. By agreeing to this form, WE fully understand the risks involved in high school activities and athletics, hold harmless the Bonita High School and Bonita Unified School District and agree to follow Bonita Unified School District’s Athletic Code (the Athletic Code is on a separate page included in the Clearance Packet). If any of the above is not completely understood, please contact your coach and/or site administrator for further explanation and information.”
(Declaration of Matthew Wien, Exh. 1.)
c. Analysis
The release describes its scope in several different ways: (1) “VOLUNTARY
SPORT/ACTIVITIE WAIVER,” (2) “this activity is voluntary as part of the Bonita
Unified School District Extra-Curricular program(s),” (3) “school
sport(s)/activity,” (4) “school activity and/or sport(s),” (5) “my child's
participation in a school activity and/or sport(s),” (6) “All persons making a
field trip or excursion,” (7) “athletic events and/or activities,” (8) and “high
school activities and athletics.”
A parent signing the release would not necessarily know if the waiver applied to all high school activities, to all school sports activities, only to extra-curricular activities, only to voluntary activities, or only to field trips and excursions. Because
the release is ambiguous regarding its scope, Moving Defendants have not
carried their initial burden of showing that “ ‘ “the act of negligence, which
results in injury to the releasor, [is] reasonably related to the object or
purpose for which the release [was] given.” ’ ” (Brown, supra, 76 Cal.App.5th
at p. 1024, quoting Benedek, supra, 104 Cal.App.4th at pp. 1357-1358; see ibid.
[“ ‘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.] An act of negligence is reasonably related to the object
or purpose for which the release was given if it is included within the express
scope of the release. [Citation.]”].)
Therefore, Moving Defendants have not carried their initial summary judgment burden on this issue.
2. Assumption of the risk
a. Legal authority
Whether the doctrine of primary assumption of the risk applies to a negligence claim “is a legal question involving the duty of care . . . .” (Nigel B. v. Burbank Unified School Dist. (2023) 93 Cal.App.5th 64, 72 (Nigel B.).)
“ ‘ “Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.” [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. [Citations.] Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.’ ” (Nigel B., supra, 93 Cal.App.5th at p. 72, quoting Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)
“ ‘[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.” [Citation.] [¶] The primary assumption of risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities. It operates on the premise that imposing such a legal duty “would work a basic alteration—or cause abandonment” of the activity.’ ” (Nigel B., supra, 93 Cal.App.5th at p. 72, quoting Nalwa, supra, 55 Cal.4th at p. 1156.)
“Thus, courts have applied the primary assumption of risk doctrine to a range of school activities including extracurricular programs (see Cann v. Stefanec (2013) 217 Cal.App.4th 462, 470–471, 158 Cal.Rptr.3d 474 [mandatory weight lifting session for members of college swim team]; Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 945–946, 80 Cal.Rptr.2d 638 [after-school wrestling program]; Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1119, 75 Cal.Rptr.2d 801 [(Aaris)] [cheerleading practice]) and elective classes (see Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 432–433, 440, 52 Cal.Rptr.2d 812 [(Fortier)] [plaintiff enrolled in advanced football class]). In each of these examples, a plaintiff, in the first instance, voluntarily participated in an activity (which may have required the undertaking of certain related tasks), such that application of the doctrine was appropriate. (See, e.g., Swigart v. Bruno (2017) 13 Cal.App.5th 529, 537, 220 Cal.Rptr.3d 556, italics added [“Primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the plaintiff is injured due to a risk that is inherent in an activity in which the plaintiff chose to participate”]; Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 600, 202 Cal.Rptr.3d 536, italics added [“ ‘Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks’ ”]; Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, 1082, 122 Cal.Rptr.3d 22, italics added [“Primary assumption of the risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks, and therefore, the defendant is relieved of his or her duty to use due care to avoid the plaintiff suffering an injury as a result of those inherently risky aspects of the sport”].)” (Nigel B., supra, 93 Cal.App.5th at pp. 72-73.)
b. Moving Defendants have carried their initial summary judgment burden
Plaintiff participated voluntarily in the activity that led to her injury, referred to in the complaint as cheerleading practice and in Plaintiff’s summary judgment papers as the “Spirit Class.” (See Exh. 6, response to request for admission number 58 [Plaintiff admits she “voluntarily engaged in cheerleading practice at the time of the INCIDENT”].) Plaintiff was aware that the activity involved inherent risks. (See Exh. 7, p. 132 [at deposition, Plaintiff agrees that, prior to incident, she understood that risks of injury were inherent in cheerleading].)
The Court finds that Moving Defendants have carried their initial burden on summary judgment of proving that Plaintiff’s claims are barred by the primary assumption of the risk doctrine. (See Fortier, supra, 45 Cal.App.4th at p. 434 [“Primary assumption of the risk occurs when a party voluntarily participates in a sporting event or activity involving inherent risk. [Citation.] Primary assumption of the risk is a complete bar to recovery”]; id. at pp. 434-437 [primary assumption of the risk doctrine barred plaintiff’s claims for injuries suffered during community college’s advanced football class because injuries were inherent in the sport of football].)
The burden shifts to Plaintiff.
c. Plaintiff has raised a triable issue regarding whether Moving Defendants increased the risk inherent in Plaintiff’s activity
Plaintiff argues that Moving Defendants increased the risk of harm involved in Plaintiff’s activity by failing to provide mats to cover the floor and other safety equipment at the time of the accident.
“Instructors, like commercial operators of recreational activities, ‘have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.’ (Knight, supra, 3 Cal.4th at p. 316; accord, [Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 254] [commercial operator of rafting trip owed plaintiff duty not to increase the risks inherent in the sport of white water rafting].)
“. . . [In Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817 (Galardi) and Tan v. Goddard (1993) 13 Cal.App.4th 1528 (Tan)] an instructor acted in such a way as to increase the risk of harm inherent in the sport. In Galardi, the instructor directed his student to jump her horse over fences which were unreasonably and unnecessarily high and improperly designed, located and spaced. (16 Cal.App.4th at p. 819); in Tan, the injured jockey was directed to ride a lame horse in the wrong direction on a track that was itself unsafe. (13 Cal.App.4th at p. 1531.) Galardi and Tan stand for the proposition that when an instructor acts so as to increase the risk of harm inherent in a particular sport, the instructor may not thereafter rely on primary assumption of the risk.”
(Fortier, supra, 45 Cal.App.4th at pp. 435-436.)
“ ‘Under primary assumption of risk, the defendant has a duty not to increase the risks inherent in the sport, not a duty to decrease the risks.’ ” (Aaris, supra, 64 Cal.App.4th at p. 1120, quoting Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52 [11-year-old little leaguer assumed risk of being struck by wild pitch].)
Plaintiff has presented evidence, including expert declarations, which raise a triable issue of fact concerning whether Moving Defendants increased the risks inherent in Plaintiff’s activity by not requiring the use of floor mats (which were available and used for other cheerleading activities) and not providing other types of training and equipment (such as a harness) to Plaintiff while she was practicing a new stunt sequence.
3. Open and obvious risk
“ ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 215 (Kaney).)
Moving Defendants have carried their initial burden on summary judgment of showing the risk of falling on the wooden floor was open and obvious, shifting the burden to Plaintiff.
“An exception to th[e] general rule exists when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’ [Citation.] In other words, while the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.” (Kaney, supra, 74 Cal.App.5th at p. 215.)
Plaintiff has raised a triable issue of fact regarding whether it was
foreseeable that she would choose to encounter the dangerous condition despite
its obviousness by presenting evidence that her grades were based at least in
part on her participation in the Spirit class.
CONCLUSION
The Court DENIES the motion for summary judgment or, in the alternative, summary adjudication filed by Defendants Bonita Unified School District, Chae Mireles, Kelly O’Grady, and Justis Mireles-Torres.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.