Iverson v. Muroc Unified School District

Discussion

Mi

chael argues subdivision (a) applies only when a plaintiff places himself voluntarily in the place of risk. He maintains at the time of his injury he was engaged in compulsory education in a junior high school physical education class he was compelled to attend.

In a sea change argument, the District now claims “voluntarily in the place of risk” modifies “spectator” only in the language of the statute, not “any person who participates in a hazardous recreational activity[.]” (See emphasized portion of § 831.7, subd. (a), fn. 2, ante.) And even if “voluntarily in the place of risk” does pertain to a participant, the District argues there is no material issue of fact involving whether Michael’s participation was voluntary.

We note from the history of this motion, the first part of the District’s argument is not the issue the District presented to the trial court in its moving or responsive papers or at the hearing; neither is it the issue to which Michael responded. Clearly, the trial court interpreted “ ‘and [who] was voluntarily in the place of risk, or having the ability to do so failed to leave’ ” to apply to a participant. The court stated in its ruling, “Here plaintiff, an experienced player, chose to participate in soccer, a hazardous activity, knowing from that experience he could be injured by body contact. . . .”

As a general rule an appellate court reviews only issues raised in the trial court. (Johanson Transportation Service v. Rich Pik’d Rite, Inc. (1985) 164 Cal.App.3d 583 , 588 [ 210 Cal.Rptr. 433 ] [“an argument or theory will generally not be considered if raised for the first time on appeal, unless the question is one of law to be applied to undisputed fact. Thus, possible theories not fully developed or factually presented to the trial court cannot create a ‘triable issue’ on appeal. . . . [Citation.]”].)

On appeal from a summary judgment, however, an appellate court reaches an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c);

Pertinent to the issue raised, the analysis presented to the Senate Judiciary Committee noted the following as among the features of the proposed legislation:

“4. Limited liability to participant

“Except as provided, (e.g., gross negligence, failure to warn), the public entity would not be liable to any person who participated in a hazardous recreational activity, including any person who assisted that participant, for any damages or injury to property or person arising out of that hazardous activity.

“The primary purpose of this bill is to prevent the hang glider or rock climber from suing a public entity when that person injured himself in the course of the activity.

“5. Limited liability to spectator

“Except as provided, this bill would immunize a public entity from liability to any ‘spectator.’ That term is described to mean any person who knew or reasonably should have known that the hazardous recreational activity created a substantial risk of injury to himself and was voluntarily in the place of risk, or failed to leave though he had the ability to do so. The purpose of this provision is to protect the public entity from lawsuits by a spectator who was injured while attending a motorcycle race or car rally on public property.” (Italics in text added except for “substantial.”)

Punctuation is a frequent source of ambiguity. (1A Sutherland, Statutory Construction (5th ed. 1984) Legal Commentary, Punctuation, p. 656.) Punctuation of a statute, while not of controlling importance, is part of the statute and should be considered in its interpretation in an attempt to give the statute the construction intended by the drafter and to seek and follow the intent of the Legislature. (People v. Henson (1991) 231 Cal.App.3d 172 , 176-177 [ 282 Cal.Rptr. 222 ].)

When the punctuation discloses a proper legislative intent or conveys a clear meaning courts should give weight to it as evidence. (Webster v. Superior Court (1988) 46 Cal.3d 338 , 344 [ 250 Cal.Rptr. 268 , 758 P.2d 596 ]; 2A Sutherland, Statutory Construction (5th ed. 1992 rev.) § 47.15, p. 179.)

The punctuation of the statute comports with the apparent purpose and intention of the Legislature that the reference to one who was “voluntarily in the place of risk, or failed to leave though he had the ability to do so,” was meant to modify “spectator” only. (§831.7, subd. (a).) But that does not end our analysis.

From our review of the legislative materials we have received from the California State Archives and law library, including the subsequent history of Assembly Bill No. 555 as it moved through the Legislature, it is clear the bill is aimed at “recreational” area users. As stated in the report of the Senate Committee on Judiciary, “The purpose of this bill is to protect public entities from lawsuits when recreational users engage in dangerous activities on public property and are injured.” There is no indication in the legislative history that this bill was meant to apply to school children injured during a physical education class conducted on school grounds. The history of the bill makes no reference to school children, school playgrounds, or physical education classes.

We find cases dealing with section 831.7 and related statutes to be of little assistance; they deal with discretionary recreational activity of a hazardous variety and are readily distinguishable from the instant facts. (E.g., Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349 , 355 [ 257 Cal.Rptr. 356 ] [surfboard of plaintiff’s son became entangled in tether of submerged lobster trap and son drowned while city pursued an antiquated rescue option and precluded volunteers from intervening; Court of Appeal affirmed summary judgment for city holding section 831.7 precludes liability for any negligently inflicted injuries while rescuing a person engaged in a hazardous

The case relied upon by the superior court involving hazardous recreational activity on school grounds in the context of section 831.7 is Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516 [ 6 Cal.Rptr.2d 437 ]. But it is also distinguishable. Yarber, an adult, was injured during an “after hours” basketball game in a school gymnasium that had been rented from the school district. (Yarber, supra, 4 Cal.App.4th at p. 1518.) Yarber was hit while shooting the ball and propelled into an unpadded concrete wall some four feet behind the line. The appellate court reversed a judgment in favor of Yarber and directed judgment be entered in favor of the district. (Id. at p. 1518.) The court observed the unpadded concrete wall was known to Yarber, who had played basketball in the building previously; it was not a “ ‘hidden trap.’ ” (Id. at p. 1520.) The court concluded as a matter of law that a full court basketball game was a “ ‘body contact sport’ ” as described in section 831.7, subdivision (b)(3), and as such was a “hazardous recreational activity” within the meaning of the statute, rendering the district immune. (Ibid.)

In a recent case an appellate court reached a different result. A student participating in after school hours, supervised, off-season gymnastic practice in the school gym was seriously injured in a fall. In Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471 [ 37 Cal.Rptr.2d 171 ], the court held public entity immunity under section 831.7 did not apply in the minor’s suit against the school district. The Acosta court concluded the issue of immunity under section 831.7 should not have been submitted to the jury “because, as a matter of law, ‘hazardous recreational activities’ do not include school-sponsored extracurricular athletic activities under the supervision of school personnel.” (31 Cal.App.4th at p. 476.)

Acosta is also distinguishable as it dealt with school sponsored extracurricular athletic activities rather than a school hours physical education class.

Bartell is also distinguishable on its facts. The hazardous activity occurred “after school hours,” at a time when supervision was not mandated and the activity was not sanctioned by the district.

A body contact sport incorporated into a schooltime physical education class is not a “recreational” activity within the meaning of section 831.7, subdivision (a) — hazardous as that activity may be in the abstract. We hold, as a matter of law, that section 831.7 is inapplicable in the context of the injuries incurred here — injuries sustained on school grounds during a physical education class required by the school and conducted during school hours. (Yarber v. Oakland Unified School Dist., supra, 4 Cal.App.4th at p. 1519 [where facts undisputed, the issue of whether a plaintiff was engaged in a “recreational hazardous activity” is a question of law for this court].)

Apart from this conclusion drawn from the specific legislative intent we have examined and pertinent case law, it appears from other extant law the District cannot prevail on the basis of section 831.7.

As observed in Acosta v. Los Angeles Unified School Dist., supra, 31 Cal.App.4th at page 477, application of section 831.7 to activities that are a part of a school’s physical education program “would constitute a major revision of California law with respect to school district tort liability.”

It is well recognized that a cause of action for personal injuries may be stated against a public entity only if authorized by statute. (§ 815.) School districts and their employees are placed under a general duty to supervise the conduct of children on school grounds during school sessions, school activities, recesses and lunch periods. (Dailey v. Los Angeles Unified Sch. Dist. (1970) 2 Cal.3d 741 , 747-748 [ 87 Cal.Rptr. 376 , 470 P.2d 360 ].) As observed in Bartell v. Palos Verdes Peninsula Sch. Dist., supra, 83

Disposition

Judgment reversed. Costs on appeal to appellant.

Dibiaso, J., and Thaxter, J., concurred.