Filed 10/1/14 Sonetti v. Huntington Beach Union High School Dist. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


MARK SONETTI II,

     Plaintiff and Appellant,                                          G049198

         v.                                                            (Super. Ct. No. 30-2012-00580070)

HUNTINGTON BEACH UNION HIGH                                            OPINION
SCHOOL DISTRICT et al.,

     Defendants and Respondents.



                   Appeal from a judgment of the Superior Court of Orange County, James Di
Cesare, Judge. Reversed.
                   Allen Flatt Ballidis & Leslie, and Michael C. Bock for Plaintiff and
Appellant.
                   Gibeaut, Mahan & Briscoe, Gary R. Gibeaut and John W. Allen for
Defendants and Respondents.
                                          *                  *                  *
                                    I. INTRODUCTION
              This is a high school football injury case. The plaintiff, Mark Sonetti, was
hit from behind during a kickoff coverage drill. He lurched forward, striking another
player with his chin. He broke his jaw. Sonetti has filed this action against Huntington
Beach High Union School District alleging his injuries were the result of the district’s
negligence. The district filed a successful motion for summary judgment based on
primary assumption of the risk, and Sonetti has taken this appeal.
              The law of assumption of the risk as regards sports injuries is easy to
conceptualize, but sometimes hard to apply: The plaintiff assumes the normal, inherent
risks in the sports activity, but does not assume increased risks attributable to the
defendant, usually an organizer, instructor, or promoter. As we explain below, the basic
rule is that courts should ascertain what is the standard practice as regards a given safety
feature in an organized sporting activity. Going the extra mile beyond what is normal, or
providing safety precautions beyond what is standard practice, is not required of a
defendant. But complying with standard, customary safety procedures is. Sonetti argues
that supplying helmets and mouthguards is a standard, customary safety procedure that
would have prevented or ameliorated his injury.
              The case comes to us on summary judgment, so the conflicts in the
evidence and the reasonable inferences to be drawn from it are resolved in favor of
plaintiff. Here, the district failed to establish that kickoff coverage drills are normally run
without helmets. The evidence is conflicting on the point, and there is evidence from
which an inference may be drawn that standard practice is for kickoff coverage drills to
be run with helmets at the time Sonetti was injured. Moreover, even the district admitted
it is standard practice to supply mouthguards for kickoff coverage drills and the evidence
is conflicting as to whether the district actually supplied them for the practice that injured
Sonetti. Accordingly, we reverse.



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                                                     II. FACTS
                  In August 2011 Sonetti played football for Fountain Valley High School for
three years. He had made the varsity team in his junior year, and was returning as a
varsity player for his senior season. In each of his previous seasons, helmets and
mouthguards had been used in all fall kickoff coverage drills.1
                  There is no dispute that it is standard practice in kickoff coverage drills for
players to wear mouth guards. In fact, Fountain Valley’s coach testified at his deposition
that a player would not be allowed to be in the drill if he wasn’t wearing one.2 Sonetti
testified at his deposition that mouthguards were normally given out to the players when
they received their helmets. The evidence on summary judgment, however, was
uncontradicted that the team’s helmets had not yet arrived by the Monday of the kickoff
coverage drill.3 Shoulder pads had been given out the preceding Saturday, but Sonetti
testified that he wasn’t given a mouthguard when he picked up his shoulder pads.4 For
his part, coach Shipp was only able to testify that mouthguards “should” have been given
out, or that he “wanted to think” they had been. His testimony did not establish that
mouthguards had been actually given out. He also indicated that mouthguards normally

         1        Sonetti testified directly to that fact in his deposition. No fall kickoff coverage drill had ever been
run without a helmet. Sonetti’s coach, defendant John Shipp, also admitted as much at his deposition. We
reproduce the relevant swath of testimony:
                  “Q. Okay. When it’s anything short of a full contact drill, are helmets required, in your opinion?
                  “A. Yes, sir.
                  “Q. Okay. What is the key determining factor or factors that triggers the need for helmets?
                  “A. Well, I mean, helmets – the helmets, if we can wear helmets, we’re going to wear helmets.
That’s what we do. Because the kids need to wear them so they get used to wearing the helmets and keeping their
heads up and being able to tackle properly.
                  “Q. If the helmets had arrived prior to the day of the accident, would the players have been
wearing them during that particular kickoff drill?
                  “A. Yes, sir. Had they been fitted properly, yes.” (Italics added.)
         2        Shipp said at one point, “I mean, all of our kids are supposed to be wearing mouthguards.” And
when asked: “For the particular kickoff coverage drill in which Mark was injured, if you realized he wasn’t wearing
a mouthpiece, you would have sent him to go get a mouthpiece. [¶] Right?” he answered “Absolutely.”
         3        As shown by an uncontroverted statement from the team’s equipment manager.
         4        The relevant testimony was:
                  “Q. And when you picked up your shoulder pads the Saturday before your injury, did you also
pick up a mouthguard?
                  “A. I don’t believe so.”


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come attached to the helmets, a fact that would buttress the inference mouthguards were
not given out to team members prior to Monday’s practice since helmets had not yet
arrived.5
                  As to those helmets, we recount in the margin the particular part of coach
Shipp’s deposition testimony relied on by the district as to whether it was standard
practice to run kickoff coverage drills with helmets in the fall.6 There is no dispute
spring drills are not normally run with helmets (Sonetti himself testified to that) but as to
the fall, Shipp’s testimony is less than pellucid.
                  There is also no dispute in the record as to what the kickoff coverage drill
run that Monday was to entail: There was to be no tackling. However, blocking was
envisaged, and coach Shipp admitted that, in the context of the drill, a defender running
down the field could end up being blocked.7 As Sonetti described what happened, he

         5         “Q. The mouthguards are attached to the helmets. [¶] Right?
                   “A. No. Well, they should be, but they were given – they get their own individual mouthpiece
and they should have been given that.
                   “Q. Okay.
                   “A. That day. [In context, the “day” being referred to appears to be the Saturday when the
shoulder pads were handed out.]
                   “Q. Do you know if the mouthguards had been given out prior – strike that. [¶] For the season in
which the accident occurred, do you know if the mouthguards had been given out for that season prior to the day of
the accident?
                   “A. They should have been.
                   “Q. Do you know whether they were or not?
                   “A. I would like to think yes, but I can’t – I can’t recollect.”
           6       Here it is:
                   “Q. Whatever those parameters are, on how many prior occasions, and you can do it
percentagewise or give me an estimate as to the number of times, great, had you conducted that exact type of
coverage drill before in which the players did not wears helmets?
                   “A. You know, you just, you mentioned 1,000 times, a little bit of an exaggeration, but that’s a
drill that was practiced many times.
                   “Q. And the players habitually would not wear helmets?
                   “A. Yes, sir.
                   “Q. How about after the accident? After the accident, how many occasions was the drill
conducted in which the players weren’t wearing helmets?
                   “A. I think it would be standard, depending on what we have, with respect to whether it was
spring or summer, we would run the drill accordingly.” (Italics added.)
                   Huh?
           7       Here is the testimony:
                   “Q. Okay. For this particular kickoff coverage drill, were the players instructed to only block the
individual in their lane or were they to pick up multiple people to block? How was the blocking supposed to be
handled?


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was running down the field in his lane, when he was blocked (or pushed) from behind,
and went into the upper torso of an adjacent player, resulting in his injuries.
                  After Sonetti filed this action for negligence, the district brought a motion
for summary judgment. The district’s evidence for the motion consisted mainly of
excerpts of Sonetti’s and Coach Shipp’s depositions. The district did not submit any
expert testimony establishing that high school kickoff coverage drills in California are
normally run without helmets. It did, however, assert in its points and authorities the
rather remarkable position that, “Absence of football helmets does not increase the risks
inherent in football.” Sonetti’s opposition included the declaration of a sports safety
expert (Marc Rabinoff) who opined that contact football “must be played with helmets
and mouthguards,” and that kickoff drills are “one of the most dangerous plays in all of
football due to high rates of speed and the likelihood of violent collisions.”8
                  The trial court granted the motion. It ruled that the doctrine of primary
assumption of the risk applied to bar Sonetti’s action. The court reasoned that “bumping,
blocking and falling are inherent in football.” As to helmets, the court relied on coach
Shipp’s testimony which the court characterized as “Players run the kick-off drill without
helmets often.” As to the concession that helmets would have been used if available, the
court cited Coach Shipp’s testimony that the reason for doing so was to have the players
get used to their helmets and “improve tackling.” The trial court read Shipp’s testimony
as saying that having helmets had nothing to do with safety. As to mouthguards, the
court simply said, “Defendants required use of a mouthguard, but were unsure if plaintiff
had one or not.”




                  “A. Well, the blocking is they were supposed to stay in their lane. And if a defender came in their
lane, that would be the person.”
          8       Dr. Rabinoff’s declaration, however, did not say whether the normal practice of high school
coaches in California is to run kickoff coverage drills with or without helmets.


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                                               III. DISCUSSION
A. The Law on Assumption of Risk in Sports in the Context of Safety Measures
                  Sports injuries are well-covered territory in the law of assumption of the
risk. The basic rule, as we said, is easily stated: Plaintiffs assume the risk inherent in the
sport or activity, but do not assume increased risks caused by the defendant. “Although
defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks
inherent in the sport itself, it is well established that defendants generally do have a duty
to use due care not to increase the risks to a participant over and above those inherent in
the sport.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.)
                  Clarity is more problematic after that. The cases come in a variety of
permutations, of course, and do not always (or even often) focus on the presence or
absence of some safety feature or precaution. Some turn on causation. (E.g., Connelly v.
Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8 [doctrine of assumption of the risk
applied where absence of extra padding on ski lift tower did not cause skier to collide
with tower].)9 Some turn on deficiency in the quality of instruction. (E.g., Kahn v. East
Side Union High School Dist. (2003) 31 Cal.4th 990 [doctrine of assumption of the risk
not applied where swim instructor made plaintiff dive into shallow pool, causing her a
broken neck].)
                  But there is a small body of cases in the assumption of risk area which turn
directly on whether the absence of some safety precaution was inherent in the activity, or
is normally an aspect of the activity. (Cf. Knight, supra, 3 Cal.4th at p. 317 [“Other cases


          9         Connelly is a causation case. It incidentally touched on the topic of safety features, but mainly as
a kind of rhetorical buttressing of its causation rationale. The court observed the plaintiff had not presented
evidence that ski operators are “required” to have a given amount of padding on ski lift towers in case of the
eventuality that a skier ran into one of them. (Cf. Connelly, supra, 39 Cal.App.4th at pp. 12-13 [“Nor are we aware
of any relevant legal authority in California, and we have not been directed to any, requiring a ski area operator to
pad its ski lift towers. It would be anomalous to hold an operator who padded its towers-as Mammoth did here –
more liable than an operator who failed to do so.”].) The Connelly court didn’t develop the theme of padding on ski
lift towers, but the implication from what it did say is that such padding is not industry standard.


                                                           6
also have analyzed in a similar fashion the duty of the owner of a ballpark or ski resort, in
the process defining the risks inherent in the sport not only by virtue of the nature of the
sport itself, but also by reference to the steps the sponsoring business entity reasonably
should be obligated to take in order to minimize the risks without altering the nature of
the sport.”].) This case takes us into this little eddy of assumption of the risk law.
Sonetti’s theory is that by not supplying helmets or mouthguards, the district fell below
its standard of care for organizing high school football.
              The cases in regard to safety measures and sports present a remarkably
consistent rule: The question of whether the plaintiff’s claim is barred by assumption of
the risk must focus on a norm or industry standard or practice.
              In Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52,
the question was whether the organizer should have provided batters helmets with
faceguards. Helmets had already been provided. The appellate court upheld application
of assumption of the risk because “the face guard which Balthazor argues should have
been required was not part of the normal safety equipment used by the League.” (Id. at p.
52, italics added; see id. at p. 51 [“each factor was in reality a normal aspect of Little
League baseball as played by youngsters everywhere”].)
              In Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 257, a
passenger in the rear of a raft holding a camera with one hand and the raft with the other
suddenly struck her head on a metal frame of a surface used to hold supplies on the raft.
She claimed the raft might have been safer if it didn’t have a metal frame. The court
rejected that argument because metal frames were “the industry standard” and there was
“no evidence of the availability or feasibility of safer alternatives to the industry standard,
or of safety features such as padding or helmets.” (Id. at pp. 256-257.)
              And in American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30,
the question was whether the design and placement of a yardage marker might have
decreased the risk of injury from an errant golf ball that had ricocheted off the marker.

                                               7
The court rejected the plaintiff’s claim that the yardage marker should not have been
located so close to the fairway. The court rejected the claim because the yard markers are
“common in the golf industry” and the system of yardage markers used by the defendant
could be found on 20 to 25 percent of golf courses nationwide. Thus there was no
increase in the normal danger posed by golfing from the placement of the yardage
marker. (Id. at p. 35.)
              On the other hand, the same principle favored the plaintiff in Saffro v. Elite
Racing, Inc. (2002) 98 Cal.App.4th 173. There the failure of the organizer of a marathon
to provide sufficient quantities of water and electrolyte replacement fluid on a warm June
day in San Diego was held not to be excused by the doctrine of assumption of the risk.
The organizer’s providing such fluids was in the “nature of the sport.” (Id. at p. 179.)
The plaintiff had presented evidence that it is customary in marathon running that
organizers provide “water and electrolyte fluids at regular intervals.” (Id. at p. 176.)
              And in Rosencrans v. Dover Images, Ltd. (2011) 192 Cal.App.4th 1072, the
doctrine of assumption of the risk was held not to apply in a case of what is perhaps the
archetypical inherently dangerous sport – motocross. (See id. at p. 1083 [“Motocross is a
sport in which people ride motorcycles and perform jumps off of ramps, while in a setting
filled with dust and other people on motorcycles.”].) The reason it didn’t apply was the
absence of a normal safety feature: a “caution flagger” at a certain platform. The
appellate court noted “it is standard practice in the industry to have caution flaggers on
their platforms at all times.” (Id. at p. 1086, italics added.) However, because a caution
flagger was not at his post, there was no one to alert the motorcyclist who had been
following the plaintiff that plaintiff had just fallen. The plaintiff was struck by that
motorcyclist while picking up his motorcycle. (See id. at pp. 1087-1088.)
              Nothing in the main case on which the trial court relied, Fortier v. Los Rios
Community College Dist. (1996) 45 Cal.App.4th 430, contradicts the standard practice,



                                              8
what-is-customary, “industry standard” approach to safety precautions. Fortier is, in
fact, consistent with the rule.
              The trial court relied on Fortier mainly because it is a football case. The
case arose out of a physical education class structured for ordinary students, as distinct
from players on the college’s own team. The students who enrolled in the “advanced
football” class were never going to be given shoulder pads or helmets, at least in that
class. As the Fortier court expressly noted, the plaintiff, “along with 50-60 other
students,” had “enrolled in an ‘advanced football’ class,” and according to the course
syllabus, the objectives of that class were to develop an appreciation for football, perform
advanced offensive and defensive techniques, and apply appropriate football strategy.”
Thus, said the court, “Helmets and pads were neither required nor provided because the
on-field practice drills were ‘non-contact’ drills, i.e., no tackling was permitted.”
(Fortier, supra, 45 Cal.App.4th at 432-433; italics added.)].)
              The injury in Fortier occurred during a “seven-on-seven” drill, which
simulates a real world passing play, except the four interior linemen are omitted from the
teams. (The idea is the eight linemen have all fought to a standstill in the trenches, so the
play boils down to the “skill position.”) The plaintiff, a wide receiver, ran up the field,
his eyes on the ball. Unfortunately a defender, playing free safety, also had his eye on the
ball, the two players collided, and the safety’s elbow fractured the plaintiff’s left eye
socket. (Fortier, supra, 45 Cal.App.4th at p. 433.) As noted, the seven-on-seven drill
had been conducted without helmets because the class did not anticipate tackling. The
plaintiff argued that defenders should have been instructed to affirmatively avoid pass
receivers in such drills. That was nonsense, said Justice Puglia, who noted that
aggression is inherent “at all levels of competition” of football, including touch football
and flag football. It would be ridiculous to expect pass defenders not to try to intercept




                                              9
the ball. That possibility, of course, implied an inherent risk of collision. (Id. at p.
437.)10
                  Given that there was no intention in the “advanced football” class which the
plaintiff had signed up for that players would ever need helmets or shoulder pads, the
plaintiff in Fortier did not initially formulate his claim in terms of a duty on the part of
the school to supply helmets. (See Fortier, supra, 45 Cal.App.4th at p. 436 [none of the
three ways in which the school supposedly breached its duty of care included supplying
helmets].) However, for the first time on appeal, he argued helmets should have been
supplied. Rather than treat the argument as waived, the Fortier court rejected it by
pointing to the state of the record. Plaintiff had asserted that “‘common sense’” militated
in favor of wearing helmets to prevent the sort of injuries he suffered, but he offered no
evidence to back up that “common sense” proposition. And the school had submitted the
uncontradicted declaration of its head football coach that helmets would actually increase
the risk of injury in a seven-on-seven drill. (Id. at pp. 438-439.)11 Accordingly, the court
rejected the plaintiff’s argument that helmets should have been given to the players in the
drill.



          10         “In every game of football, touch, flag, or tackle, the object is for the offense to move the ball
down the field by running or passing it, and for the defense to stop or impede the progress of the offense. It is a
universally accepted defensive tactic to knock down or intercept passes thrown to offensive players. If instead
defensive players were to run away from intended receivers in order to avoid contact, as plaintiff proposes, it would
fundamentally alter the game of football as it is played at all levels of competition, and would run contrary to the
Supreme Court’s dictum that the ‘overriding consideration in the application of primary assumption of risk is to
avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its
fundamental nature.’” (Second italics added.)
          11        “Although the record contains no such evidence, we shall assume a helmet would have protected
plaintiff from the type of injuries he suffered. However, there is no evidence that a helmet would protect the players
from other types of injuries they might suffer in a similar collision.
                    “More significantly, there is evidence in the record that wearing a helmet might actually increase
the risk of injury. In his declaration in support of summary judgment, Ghilardi [the head coach] states: ‘It would
not be safe to wear helmets and pads for pre-season practice. The players are generally not ready for contact
football at this point because of a lack of physical conditioning . . . . Helmets and pads protect against physical
contact. By allowing players to use helmets and pads, even during non-contact drills, it can encourage players to
tackle or make other intentional contact. Pre-season, non-contact drills without pads and helmets increase[] safety.”
(Fortier, supra, 45 Cal.App.4th at pp. 438-439, italics added.)


                                                          10
B. Application
               This case comes to us on summary judgment. Therefore conflicts in the
evidence are resolved in favor of the responding party and the responding party is also
entitled to all reasonable inferences to be drawn from the evidence. (See Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 [“In ruling on the motion, the court
must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn
therefrom . . . and must view such evidence . . . and such inferences . . . in the light most
favorable to the opposing party.”].) Applied to this case, this standard of review means
the following facts are established for purposes of the district’s summary judgment
motion:
               (1) No mouthguards were given out. In combination with Sonetti’s
statement that mouthguards were normally given out with the helmets, and the fact the
helmets did not arrive that Saturday, there is a reasonable inference no mouth guards
were given out on the Saturday before the Monday practice. We note that the district, as
moving party on the summary judgment motion, did not provide the declarations of any
players to the effect that mouthguards had been given out.
               (2) The standard practice of Fountain Valley High School was not to allow
players to run kickoff drills without mouthguards. Coach Shipp said that himself.
               (3) The standard practice of Fountain Valley High was to run fall
practices in the fall with helmets, not without them. Sonetti testified that every time the
drill had been run in the fall in the previous three seasons it had been run with helmets.
Beyond that, coach Shipp admitted that if he had had helmets available, he would have
had the players wear them. If standard practice was not to wear helmets, coach Shipp
might very well have said he wouldn’t have had the players wear them, just as the coach
in Fortier had said that in the context of a seven-on-seven drill helmets would increase
the risk of injury.



                                              11
              In light of these facts, we must conclude the summary judgment was error.
A trier of fact could reasonably conclude that helmets and/or mouthguards were standard
practice and that had the district passed out helmets or mouthguards, Sonetti’s injuries
would have been prevented or would have been less severe. There is a conflict as to
whether mouthguards were passed out. There is no conflict as to whether helmets were
passed out – they weren’t. So there are triable issues of fact under the present state of the
evidence.
              It is certainly clear that the district did not establish it is standard practice in
fall kickoff coverage drills to dispense with helmets. Coach Shipp’s testimony
suggesting helmets weren’t used (quoted at footnote 6 above) is wobbly, and his
statement the drill would have been run with helmets if they had arrived suggests a
standard practice of conducting kickoff coverage drills with helmets. It is hard to read
that testimony as anything other than an admission that the only reason Sonetti wasn’t
wearing a helmet was that they were not yet available. When compared with the
unequivocal testimony of Sonetti that in the fall season kickoff drills had always,
previously been conducted with helmets, it cannot be said there is no issue as to whether
the standard practice of the school was to run such drills without helmets.
              Moreover, unlike Fortier, here there is no evidence to the effect that
helmets are disfavored in the particular drill being run on the counterintuitive theory,
relied on by the Fortier court, that they increase the risk of injury. Even assuming the
trial court was correct to read coach Shipp’s testimony to the effect that the only reason
helmets had been worn for kickoff drills was to accustom players to their helmets and
tackling technique and the coach was indifferent to the extra safety provided by helmets,
the uncontradicted evidence, from Sonetti’s sports safety expert, is that helmets would
have been desirable for safety reasons.




                                               12
                                     IV. CONCLUSION
              Vince Lombardi once famously said that practice doesn’t make perfect,
only perfect practice makes perfect. The kickoff coverage drill here may have fallen
short of that standard as well as the law’s. By not waiting until the helmets and
mouthguards arrived, the team lost an experienced player to a broken jaw. Football has
its inherent risks, but in most contexts, including this kickoff coverage drill, the standard
practice appears to be mitigation of those risks by playing the game with helmets and
mouthguards. A jury should decide whether that appearance is fact. It was error to grant
the motion for summary judgment.
              The judgment of dismissal is reversed. In the interests of justice appellant
shall recover his costs on appeal.




                                                  BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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