FIDOPIASTIS v. HIRTLER (1995)

OPINION

Cali Fidopiastis appeals the granting of judgment in favor of Mark Hirtler after the dismissal of her action for negligence resulting from an injury received during a tennis lesson given to her by Mark Hirtler.

I

Cali, a personal trainer at Los Caballeros Sports Village, was a tennis student of Mark, the owner and director of the club's tennis academy.   During a lesson, Mark volleyed a ball to her which hit her in the eye.   Cali's unverified complaint alleged the details as follows:  “[A]fter hitting volleys at the net, [Mark] began hitting to [Cali] from the baseline.   As [Cali] turned to go to the baseline, [Mark] hit another volley, striking her in the eye․”

After discovery was completed, Mark filed a motion for summary judgment.   Relying on Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, he argued no duty of care was owed and, in the alternative, even if a duty existed, Cali failed to establish its breach.   Cali's response and Mark's supplemental declarations indicated they disagreed on several salient facts and the controlling law.

There is no dispute that prior to the accident Mark was standing at the baseline hitting forehand and backhand volleys to Cali who was positioned near the net.   The parties' disagreement centers on what next transpired.   Mark maintained they continued to volley.   Cali was in a ready position, holding her racquet with both hands when Mark hit a ball to her at a slow-to-medium-speed.   Cali did not return the ball, instead it hit the side of her racquet and then her eye.

Cali remembered she and Mark stopped volleying.   She was moving balls away from her feet and they were discussing what they were going to do next.   Mark suggested she should return to the baseline.   She did not recall whether she had started to turn toward the baseline when she was hit, but she was sure she did not see the ball coming because she was looking down at the tennis balls on the court.   Cali also disagreed with Mark's assessment of the ball's velocity, indicating it was traveling very fast.

The trial court granted Mark's summary judgment motion.   Relying on Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, it concluded, notwithstanding the coach/student relationship, Mark did not owe Cali a duty because they were “playing” tennis and the risk of the injury received is inherent within the scope of the game.

II

 In Knight v. Jewett, supra, 3 Cal.4th 296, 318, 11 Cal.Rptr.2d 2, 834 P.2d 696, our Supreme Court considered the “circumstances under which a participant in [a touch football game] may be held liable for an injury sustained by another participant.”   It concluded, “[A] participant in an active sport breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”  (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.) ¹  In short, a defendant who injures a plaintiff while both are engaged in a sport is entitled to a limited duty of care only when the sport is active and the parties are coparticipants.

 As defined by Knight, tennis may or may not be an active sport.²  However, because Mark was Cali's teacher, they were not coparticipants and that distinction is dispositive.  “[I]n the sports setting, as elsewhere, the nature of the applicable duty ․ frequently varies with the role of the defendant․”  (Knight v. Jewett, supra, 3 Cal.4th 296, 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Several appellate courts have considered this precise issue.   In Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270, the plaintiff, “an accomplished equestrian, sustained personal injuries when she fell from a horse while training for an upcoming horse show.”  (Id. at p. 819, 20 Cal.Rptr.2d 270.)   She alleged her trainer had “ ‘negligently instructed, supervised and controlled [her] activities ․ causing [her] to jump over fences that were unreasonably and unnecessarily high for the circumstances․' ”  (Ibid.)   Relying on Knight, the trial court granted defendant's summary judgment motion but the Court of Appeal reversed.   The Galardi court acknowledged the plaintiff, by engaging in horse jumping, knowingly encountered risks.   But it concluded, “[T]he occasion of plaintiff's fall and injury was not during competition with other riders.   Instead, she had placed her training in the hands of defendants, who were employed to instruct and coach her.   Their responsibilities were directly to plaintiff.   While other riders, as coparticipants, would not have any special duty of care to plaintiff during competition to ensure she did not fall, defendants certainly had a duty to avoid an unreasonable risk of injury to plaintiff․”  (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817, 822–823, 20 Cal.Rptr.2d 270.)

We also look to Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89 where the plaintiff, a novice horseback rider, was injured while taking a lesson.   Tan sued the school and its instructor for negligence.   The Tan court reversed the trial court's granting of summary judgment, finding the doctrine of primary assumption of the risk inapt because the defendant's “role as [a] riding instructor to Tan was such that he owed Tan a duty of ordinary care․”  (Id. at p. 1535, 17 Cal.Rptr.2d 89.)

Mark argues Tan is inapt because the plaintiff was an inexperienced rider who relied on clearly erroneous instructions;  and Galardi is not dispositive because the plaintiff, while an experienced rider, was engaging in a sport far riskier than tennis.   Moreover, Mark maintains horseback riding and tennis differ because the latter requires the instructor to be a coparticipant.   In short, Mark maintains the instructor/student relationship is only relevant when an inexperienced plaintiff engages in a dangerous sport which is taught without the instructor's active participation.   Mark misunderstands the authorities upon which he relies.

As the Knight court recognizes, “[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff's conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.”  (Knight v. Jewett, supra, 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The question of defendant's liability is neither “dependent on the knowledge or consent of the particular plaintiff” (id. at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696) nor based on the manner in which the sport is taught.   Rather, “a complaint [which] rais[es] the issue of coach or instructor negligence during training involves secondary assumption of risk, which is not a complete bar to recovery [but] permits a trier of fact to consider comparative fault principles and the relative responsibilities of the parties and to apportion the loss resulting from plaintiff's injury.”   (Galardi v. Seahorse Riding Club, supra, 16 Cal.App.4th 817, 824, 20 Cal.Rptr.2d 270.)

When a defendant is not a participant, the Knight rule is inapt because the defendant as the instructor is “in control ․ decid[ing] what would be done and when․  [¶] Under these circumstances, defendant owed a duty to plaintiff ․ not to increase the risks inherent in the game․”   (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 754, 33 Cal.Rptr.2d 732.)

III

The trial court also concluded even if the parties' were not coparticipants, Cali, as a matter of law, failed to establish negligence.   This too was error.

 Cali and Mark disagree as to what transpired immediately before she was injured.   Cali maintains they had stopped rallying and were discussing what to do next.   Mark told her to go back to the baseline and while she was either turning in that direction or was looking down brushing balls away from her feet, he hit a very fast ball to her.   Because she was not looking, she was unprepared to protect herself.   Mark conversely maintains they were not talking but rallying.   Cali was standing at the net in a ready position, waiting for the next ball which hit her at a slow-to-medium speed.

The trial court in ruling on a summary judgment motion is to determine whether material issues of fact exist.   The court “is not to decide the merits of the issues themselves.”  (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)   Cali's version if accepted by the trier of fact as true would support a finding that Mark breached his duty of care to her.   The trial court therefore erred in granting Mark's summary judgment motion.

The judgment is reversed.   Cali shall recover her costs on appeal.

To my way of thinking the teacher-student issue is beside the point.   Students assume the risk of being hit by tennis balls in the ordinary course of a tennis lesson.   Happens all the time.   Put another way, a teacher acts well within the standard of care in hitting a hard shot at a high level player who is expecting it.

There is a triable issue of fact, however, as to whether plaintiff was in position to receive a shot.   Her testimony is that she was brushing balls away from her feet preparatory to returning to the baseline as instructed.   In other words, she was not playing tennis at the time and assumed no risk of having a tennis ball hit toward her.   Do football players assume the risk of being tripped by an opposing player when running in from the sideline to the huddle between plays?   Of course not.   Do basketball players assume the risk of a negligent elbow to the chops during a time-out?   No.

And tennis players do not assume the risk of being hit by tennis balls between games in a set.   Whether they assume that risk between points or during lulls in a lesson is a question a jury will have to decide;  it simply is not the proper subject of a motion for summary judgment.

I respectfully depart from the result reached by my colleagues.   The lead and concurring opinions are simply incompatible with Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.   One of the risks inherent in volleying tennis balls about on a tennis court is that a player may be struck by one of them—even a skilled player like the plaintiff here, who was a contender for the Greek olympic tennis team.   It makes no difference if the person who initially hit that ball is one's instructor, or merely a fellow player.

Knight v. Jewett confronted the precise problem now before us—the application of the assumption of risk doctrine in the context of a sports-related injury.   There, in an informal game of touch football played during the Super Bowl half time, a rather “overexuberant” defendant (as Justice Mosk described him) ¹ jumped up in an attempt to intercept a pass, and, in coming down, knocked the plaintiff over and stepped backward on her hand and little finger.   Our Supreme Court upheld a summary judgment in favor of the defendant.   While the case generated four opinions,² there was near unanimity on the result.   Jumping up to intercept a pass—even in an informal sandlot game—was, for four justices,³ conduct so within the “ordinary activity involved in the sport” ⁴ that the defendant should not have legal liability for accidentally stepping on the defender's hand as he came down.⁵

Interestingly enough though, employing the “consent-based” analysis advocated by Justice Kennard, two other justices ⁶ reached the same result.   They concluded that the undisputed facts “amply” supported judgment for the defendant because the “risk of physical contact and the possibility of resulting injury is inherent in the game of football, no matter who is playing the game or how it is played.” ⁷

The same holds true for the instant case.   Tennis often involves volleying between players without regard to formal service and point counting.   When players engage in such volleying, there is no expectation that every shot will be timed so as to be made only when the other player is set, facing his or her opposite, expecting the shot.   A volley shot to a player who is in the process of turning, or momentarily looking down, is hardly “outside the range of the ordinary activity involved in the sport.”  (See Knight v. Jewett, supra, 3 Cal.4th at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696 (lead opn. of George, J.).  By the same token, the risk of a ball bouncing off a racquet and hitting a part of one's body is “inherent” in the nature of the activity, and therefore assumed by its participants.  (See id. at p. 323, 11 Cal.Rptr.2d 2, 834 P.2d 696 (conc. & dis. opn of Panelli, J.).)

The present case is like Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 289 P.2d 282, cited in Knight, supra, 3 Cal.4th at page 316, 11 Cal.Rptr.2d 2, 834 P.2d 696, which held that the chaperone of a girl's softball team standing on a baseball field during a warm-up period assumed the risk of a negligently thrown ball.  “It is well known that in such a period balls are batted and thrown about, several balls may be in use at the same time, and there is usually a large amount of general activity.”  (Mann, supra, 136 Cal.App.2d at p. 734, 289 P.2d 282.)   It is equally well-known that in informal volleying in tennis the play is generally continuous and there is no set time for any given shot.

By relying on the fact that the defendant here was the plaintiff's instructor, the lead opinion concedes the correctness of my analysis.   Yes, the lead opinion seems to say, the risk of being hit by a deflected tennis ball is inherent in tennis volleying, but the fact the parties were “instructor and student” is “dispositive.”

No, it is not.   Under the facts of this case, it is irrelevant.   The ill-fated shot here could just as easily have been made by another player in the process of warming up with the plaintiff as by a coach.   The fact defendant was plaintiff's instructor had nothing to do with the accident.

The lead opinion seems to base its conclusion on the idea that the doctrine of assumption of risk as articulated in Knight has no valid application to instructors—any instructor—because the instructor is “in control.”  (Typed lead opn. at p. 96, citing Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 33 Cal.Rptr.2d 732.)

To say that the defendant was “in control” here, though, is nonsense.   He was functioning as a coparticipant in the sport.   The same cannot be said for the post-Knight cases that have allowed suits to go forward, where instructor-defendants were not actual participants, but either (1) in control of the equipment used (e.g., Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817, 20 Cal.Rptr.2d 270 [stable owner and riding instructor set jump fences too high and close together];  Tan v. Goddard (1993) 13 Cal.App.4th 1528, 17 Cal.Rptr.2d 89 [jockey school's horse trainer told student that horse with injured left foot was safe to ride, horse later stepped on object and fell while student was riding it] ) or (2) directed the plaintiff to continue to do something harmful where the plaintiff had sought advice as to whether to continue (Wattenbarger v. Cincinnati Reds, Inc., supra, 28 Cal.App.4th 746, 753, 33 Cal.Rptr.2d 732. [plaintiff, a would-be pitcher at tryout for professional baseball team, sought “guidance as to how to proceed” after his arm popped;  team personnel allowed him to continue, and on the next pitch some bone and tendons pulled away in his arm] ⁸ ).  A fencing instructor who did not check to see that the sleeve in a fencing jacket was double lined might be liable for wounds subsequently inflicted during a session with a student if the lack of the lining allowed a blade to penetrate, but the reason would not be because the instructor happened to be the student's opponent.   The liability would arise because the student trusted in the instructor to supply clothing of sufficient strength for the weapon used.

Without minimizing the retinal injury suffered by plaintiff, the fact remains that it is still the result of a risk inherent in tennis volleying.   We should have the gumption to apply the doctrine of assumption of the risk as articulated in Knight.

FOOTNOTES

1.   Mark argues the trial court correctly concluded his conduct could not be considered so reckless as to be totally outside the range of ordinary activity involved in tennis.   Perhaps, but as explained in Knight, this is a relevant consideration only when the plaintiff would otherwise be barred by primary assumption of the risk.

2.   “Because the touch football game ․ clearly falls within [the definition of an active sport], we have no occasion to decide whether a comparable limited duty of care appropriately should be applied to [coparticipants in] other less active sports, such as archery or golf.”   (Knight v. Jewett, supra, 3 Cal.4th at p. 320, fn. 7, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

1.   Knight v. Jewett, supra, 3 Cal.4th at page 321, 11 Cal.Rptr.2d 2, 834 P.2d 696 (conc. & dis. opn. of Mosk, J.).

2.   A lead opinion by Justice George, joined in by Chief Justice Lucas and Justice Arabian, which advocated a duty-based approach rooted in the inherent nature of the sport;  a concurring and dissenting opinion by Justice Mosk, in which he agreed with the basic analysis of Justice George's opinion, but advocated eliminating the doctrine of implied assumption of risk altogether;  a concurring and dissenting opinion by Justice Panelli, joined in by Justice Baxter, which agreed with the result reached by Justice George's lead opinion, but did so using the consent-based approach of Justice Kennard's dissenting opinion;  and, finally, Justice Kennard's dissenting opinion, in which she advocated a consent-based approach rather than a duty-based approach, and concluded that under such an approach there was a triable issue of fact as to whether plaintiff indeed consented, given the lack of “uncontroverted evidence that defendant's aggressive style of play was appropriate” (id. at p. 338, 11 Cal.Rptr.2d 2, 834 P.2d 696 (dis. opn. of Kennard, J.)).

3.   Chief Justice Lucas, and Justices George, Arabian and Mosk.

4.   See id. at pages 320–321, 11 Cal.Rptr.2d 2, 834 P.2d 696 (lead opn. of George, J.).

5.   This conclusion the majority termed “primary assumption of risk.”  (Id. at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696 (lead opn. of George, J.).

6.   Justices Panelli and Baxter.

7.   Id. at pages 323–324, 11 Cal.Rptr.2d 2, 834 P.2d 696 (conc. & dis. opn of Panelli, J.).

8.   As a consolation prize for losing on appeal, the Wattenbarger opinion described the Reds as “the most venerable of all baseball franchises which already occup[ied] legendary status in the annals of American sports.”  (Wattenbarger, supra, 28 Cal.App.4th at p. 755, 33 Cal.Rptr.2d 732.)

SONENSHINE, Associate Justice.