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.


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

Sibley v Milutinovic (1990) H&FLR 2014-4

Sibley v Milutinovic (1990) H&FLR 2014-4

Supreme Court of the Australian Capital Territory

9 February 1990

Coram: Miles CJ

Appearing for the Plaintiff: Mr Lunney (Instructed by Macphillimy Cummins & Gibson)
Appearing for the Defendant: Self-represented

Catchwords: Australian Capital Territory – soccer – non-competitive match – tackle – punch – consent – rules.

Facts: The parties were members of two soccer teams which held a friendly training match on 27 May 1987. The match was unrefereed. Two incidents took place between the parties. In the first incident the plaintiff undertook a “low sliding tackle” which caused both men to fall over. The defendant abused the plaintiff and told him to watch out. In the second incident the plaintiff performed another slide tackle on the defendant, who again fell. The defendant got up and punched the plaintiff breaking his jaw. The defendant received a kick to the ankle in the tackle and for which he made a cross-claim. Both parties pleaded a defence of voluntary assumption of risk.

There was no evidence as to the rules of soccer. The court relied on judicial knowledge to find that while soccer involved some inevitable physical contact between players, the intentional use of force by one player against another was outside the rules where the force was likely to cause injury.

Held: Upholding both claims –

(1) The defence of voluntary assumption of risk is not appropriate to an action for assault. The court worked on the assumption that the parties had actually intended to raise a defence of consent.

(2) The blow to the plaintiff’s jaw was outside the rules and outside the scope of the plaintiff’s consent to some physical contact during the game. Hence, the plaintiff’s claim succeeded.

(3) Because the match was non-competitive, “the extent to which players were entitled to adopt tactics likely to result in physical injury to an opposiiung player is … to be distinguished from conduct justifiable during a competition match”.

(4) The court was not satisfied that the plaintiff’s slide tackles were within the rules that the parties had expected to be observed. Because the plaintiff had not proved that the defendant consented to the sliding tackle, the cross-action succeeded.


The Court’s judgment is available here.