Posted on by Stephen Tuck

Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Zahra Naser v Lakeridge Athletic Club (2014) H&FLR 2014-38

Court of Appeal of California (First Appellate District)

27 June 2014

Coram: Jones PJ, Bruiniers and Simons JJ.

Appearing for the Plaintiff: Michael R Loewen and Noah Freeman Schwinghammer (of Law Office of Michael R Loewen)
Appearing for the Defendant: Joseph J. Minioza, Jason W Mauck and Gregory A. Mase (of Ericksen Arbuthnot)

Catchwords: California – health clubs – release – waiver – locker room – wet floor – slip – injury

Facts: The plaintiff was a member of the Lakeridge Athletic Club in El Sobrante. On joining in February 2004 she signed a membership agreement which included a release waiving any claim against the club in respect of injury caused by its negligence. The release relevantly stated –

The Member is fully aware of the potential dangers incidental in engaging in the activity and instruction of exercise activities (such as weight lifting, bodybuilding, aerobic dancing, and any other exercise activity). In consideration of permitting this member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area), the Member agrees to voluntarily assume all liability and to indemnify [Lakeridge] for any death, injury, or damage suffered by any person, including the Member, arising out of the Member’s activities at [Lakeridge] even if death, injury, or damage is caused by [Lakeridge’s] own passive or active negligence.

On 26 January 2009 the plaintiff attended the club and used the facilities. She returned to the locker room and while there she slipped in a puddle of water, suffering a knee injury.

The plaintiff brought proceedings against the club in negligence. The Defendant sought summary dismissal of the claim on the basis that the plaintiff, by signing the membership agreement, had voluntarily assumed all liability for injury. The plaintiff responded (inter alia) that the release did not apply because her injury was not exercise-related. The application for dismissal was granted: Naser v Lakeridge Athletic Club (Superior Court of Contra Costa County, Austin J, 21 February 2013, unreported). The plaintiff appealed.

Held: Dismissing the appeal, that –

1. The release expressly provided that it was in “consideration of permitting the member to join this Club or to participate in exercise activity and/or instruction at these premises (including the entire indoor area and outdoor parking area)”. The plaintiff’s use of the locker room was covered by the release.

2. In this case, it was proper to find that slipping on a wet locker room floor was reasonably related to the purposes of the release. Semble, slipping in a wet locker room is a hazard known to relate to use of a health club for exercise.

Leon v Family Fitness Center (#107), Inc (1998) 61 Cal.App.4th 1227, considered.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Young v Workers Comp. Appeals Board (2014) H&FLR 2014-37

Daniel Young v Workers Compensation Appeals Board and County of Butte (2014) H&FLR 2014-37

Court of Appeal of California (Third Appellate District)

25 June 2014

Coram: Nicholson APJ, Hull and Butz JJ.

Appearing for the Plaintiff: Craig E. Johnsen (of Mastagni, Holstedt, Amick & Johnsen)
Appearing for the First Respondent (Board): No appearance
Appearing for the Second Respondent (County): Mr Richard A Weyuker and Ms Lauren E. Sible (of Cuneo, Black, Ward & Missler)

Catchwords: California – workers compensation – corrections officer – exercise outside work hours – jumping jacks – work requirement – expectancy

Facts:  The plaintiff, aged 64 years, was employed as a Correctional Sergeant by the Butte County Sheriff’s Department. The Department required its employees to maintain themselves in good physical condition so to be able to sustain the “strenuous physical contacts” of the role. However, it did not provide an opportunity to exercise during working hours. It also did not provide guidance as to the exercises or activities required to maintain the necessary level of fitness. The plaintiff therefore maintained a personal fitness regimen in his own time. While doing “jumping jacks” as part of this regimen on 9 January 2012 he sustained a left knee injury (injury).

The plaintiff claimed workers compensation for the injury and a Workers Compensation Judge found the injury to be compensable under §3600(a)(9) of the Californian Labor Code. That section provides that workers compensation benefits are not payable for an injury arising out of

voluntary participation in any off-duty recreational, social or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.

The Workers Compensation Appeals Board (Board) disagreed and annulled the decision: Young v County of Butte (Workers’ Comp. App. Bd, 20 September 2013, unreported). The plaintiff sought review of the decision.

Held: Annulling the Board’s decision, that –

1.  There is a reasonable expectancy of activity in connection with employment if an employee subjectively believes their participation in the activity is expected by the employer and this belief is objectively reasonable. The worker’s subjective belief is a question of fact and its objective reasonableness a question of law.

Ezzy v Workers Compensation Appeals Board (1983) 146 Cal.App.3d 252 and City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513, followed.

2. To find a belief objectively reasonable, there must be a substantial nexus between the employer’s requirements and the specific off-duty activity in which the worker was engaged when injured. In this case, the failure of the department to provide guidance as to exercises or an opportunity to exercise at work meant it was objectively reasonable for the plaintiff to believe the department expected him to exercise while off duty. It would be completely unrealistic to find that jumping jacks – being a common part of warm-up exercises – were not expected of middle aged correctional sergeants who were required to maintain good physical condition.

City of Stockton v Workers Compensation Appeals Board (2006) 135 Cal.App.4th 1513 and Wilson v Workers Compensation Appeals Board (1987) 196 Cal.App.3d 902, followed.

Judgment

The Court’s judgment is available here.

Posted on by Stephen Tuck

Velasquez v Superior Court (2014) H&FLR 2014-35

Jorge Velasquez, Jr v Superior Court of Los Angeles County and The People (2014) H&FLR 2014-35

Court of Appeal of California (Second Appellate District)

17 July 2014

Coram: Klein PJ, Aldrich and Kitching JJ

Appearing for the Petitioner (Velasquez): Messrs Ronald Brown, Albert Menaster, Kenneth Erlich and Dylan Ford (public defenders)
Appearing for the Respondent (Superior Court): No appearance
Appearing for the Real Party in Interest (People): Mesdames Jackie Lacey, Phyllis Asayama and Beth Widmark and Mr Matthew Brown (District Attorneys)

Catchwords: California – criminal law – bicycle – intoxicated cyclist – injury – reckless – vehicle – definition.

Facts: On 1 April 2013 the defendant was travelling downhill on his bicycle after a prolonged drinking session. His bicycle had no brakes and could only be stopped with foot pressure. A car pulled in front of him and to avoid it he veered onto the wrong side of the road, colliding with Ms Sudha Russell, who suffered significant injuries. The defendant’s blood alcohol reading was 2.18 and he was charged with reckless driving of a vehicle causing injury under §23103 of the Californian Vehicle Code (Code).

The Code is ambiguous as to its application to bicycles. Section 670 defines a vehicle as “a device by which any person or property may be propelled, moved, or drawn upon a highway, excepting a device moved exclusively by human power …” However, §21200(a) states that a “person riding a bicycle … upon a highway … is subject to all the provisions applicable to the driver of a vehicle by this division”.

On the basis that a bicycle is not a vehicle, the defendant applied to dismiss the proceedings. The trial court denied the application but invited the defendant to seek a writ of prohibition in the Court of Appeal: People v Velasquez (Superior Court of Los Angeles County, Priver J, 7 November 2013, unreported).

Held: Dismissing the application, that –

1. A specific provision prevails over a general one. Because §21200 (and by extension §23103) applies specifically to cyclists, it is to be preferred to the generally drawn §670. A cyclist can therefore be subject to criminal charges for reckless driving.

People v Ahmed (2011) 53 Cal. 4th 156 and People v Calderon (2013) 214 Cal. App. 4th 656, followed.

Clingenpeel v Municipal Court (1980) 108 Cal. App. 3d. 394, not followed.

2. While bicycles and motor vehicles will often pose significantly different levels of danger to the public, the unfairness is mitigated by the availability of lesser penalties for reckless cyclists.

Judgment

The court’s judgment is available here.

Posted on by Stephen Tuck

Michelle Rios v Grossmont Union High School District (2013) H&FLR 2014-15

Michelle Rios & Ors v Grossmont Union High School District (2013) H&FLR 2014-15

Fourth District Court of Appeal for California

16 December 2013

Coram: McConnell PJ, Irion and O’Rourke JJ.

Appearing for the Appellant: Mark C. Choate (of Choate Law Firm) and Jon R. Williams (of Boudreau Williams LLP)

Appearing for the Respondent: Daniel R. Shinoff and Paul Vincent Carelli (both of Stutz Atiano Shinoff & Holtz APC)

Catchwords: California – high school – football – ankle injury – returned to play – tackle – spinal injury – negligence – standard of care – jury instructions –  appeal

Facts: Michelle and Reymond Rios were the parents of Colter Rios, who suffered a spinal injury while playing for a high school football team organised by the defendant.  He sustained an ankle injury during play and, after having the ankle strapped by a college student who was studying athletic training (rather than the school’s athletic trainer himself), was returned to the field.  After rejoining play, he was tackled by an opposing player and suffered significant injuries.

Master Rios and his parents brought proceedings against the defendant school district.  They alleged that the District had negligently allowed him to continue to play following his ankle injury.  The parties agreed that the ordinary standard of care applied, with the further detail that adults must anticipate the ordinary behaviour of children and be more careful in dealing with children than in dealing with other adults.  The jury was permitted to consider the community’s customs or practices in assessing what a reasonable person would have done in the circumstances.  It was also agreed by the plaintiffs that the standard of care to be observed by school staff is that which a person of ordinary prudence and having comparable duties would exercise under the same circumstances.  They did not ask that the jury be given any particular instructions based on the standards of the National Athletic Trainers’ Association standards or of the California Interscholastic Federation.

The jury returned a finding of no negligence.  The plaintiffs appealed.

Held: Per curiam, dismissing the appeal –

1.            The court at first instance had correctly instructed the jury as to the law: in a claim for injuries suffered in a high school football game, the standard of care required of a school official is that which a person of ordinary prudence, with the same responsibilities and in the same circumstances, would exercise.

Pirkle v Oakdale Union Grammar School District, 253 P.2d 1, 40 Cal.2d 207 (1953), followed.

2.            When the relevant law has been stated correctly in a general charge to the jury, a party may not argue on appeal that a more specific instruction should have been given, unless they at the time requested a more specific instruction be given.

White v Inbound Aviation, 69 Cal.App.4th 910, 82 Cal.Rptr.2d 71 (1999), followed.

No finding was made on whether more specific instructions should actually have been given to the jury.

Judgment

The court’s judgment is available here.  The Supreme Court of California declined to consider an appeal.