Filed 6/24/13
                           CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                    DIVISION FIVE




SCARLET CANN,                                   B243396

        Plaintiff and Appellant,                (Los Angeles County Super. Ct.
                                                 No. LC094333)
        v.

ANNIE STEFANEC,

        Defendant and Respondent.




        APPEAL from a judgment of the Superior Court of Los Angeles County, Russell
Steven Kussman, Judge. Affirmed.
        Law Offices of Gary A. Dordick, Gary A. Dordick and Mark J. Bloom for Plaintiff
and Appellant.
        Horvitz & Levy, Karen M. Bray, Emily V. Cuatto; Gates, O‟Doherty, Gonter &
Guy and Peter J. Gates for Defendant and Respondent.


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          Plaintiff and appellant Scarlet Cann was injured by a weight dropped by defendant
and respondent Annie Stefanec, her teammate on the UCLA swim team, during a
mandatory team workout session intended to strengthen the swimmers. Cann filed an
action alleging negligence against Stefanec. Stefanec successfully moved for summary
judgment on the basis of the doctrine of primary assumption of the risk. Cann argues
primary assumption of the risk does not apply under the circumstances of this case. We
affirm.


The Motion for Summary Judgment


          Stefanec‟s motion for summary judgment relied on the following undisputed facts.
Cann and Stefanec were members of the UCLA women‟s swim team on February 4,
2010. The team lifted weights twice a week in the weight room for the purpose of
improving strength to help in competitive swimming. The weight room had numerous
platforms elevated one to two inches off the ground, with a weight rack on each platform.
Team members were performing a circuit of three exercises, including “step-ups,”
pushups, and use of a “glut/ham machine.”
          Stefanec was performing step-ups on the platform with her back to the weight
rack, while Cann was nearby doing pushups. Stefanec had a weight bar containing two
five-kilogram plates on her shoulders while doing the step-ups. Stefanec lost her balance
and began to fall backward. Stefanec dropped the weight bar behind her and fell
backward onto the bar, fracturing a vertebrae in her back.
          According to another member of the swim team, the weight bar rolled less than
two feet and a weight plate came in contact with Cann‟s head, as Cann was performing
pushups behind Stefanec. Cann estimated she was four or five feet from the bench where
Stefanec was performing the step-ups, and she was two to three feet away when Stefanec
fell. Cann does not know what part of the weight bar or weight plates hit her.
          Cann, Stefanec, and two other swim team members testified in deposition that
swimmers were instructed by a coach to drop the weight bar if the weight was too heavy


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or the lifter lost her balance. Cann had observed UCLA team members drop weights
prior to this incident. Cann had dropped weights before this incident when “maxing out.”


Cann’s Opposition to the Motion for Summary Judgment


       Cann argued that she did not assume the risk that Stefanec, or anyone else, would
drop a weight on her head. Her mere presence in a gym did not assume all risks of
negligent conduct by others. Even if assumption of the risk was applicable, this case falls
outside of the doctrine because a jury could find that Stefanec acted recklessly by lifting
weights within inches of Cann‟s head.
       Cann‟s presence in the weight room was required by her coach. She was doing
pushups, not lifting weights, when injured. Cann and Stefanec were not competing and
were not coparticipants in a sport. They were engaged in two different and distinct
activities. Pushups do not involve the risk of injury from heavy weights. The weight fell
directly onto Cann, it did not roll onto her. Stefanec was too close to Cann when
Stefanec dropped the weights.


Stefanec’s Reply to the Opposition


       Stefanec argued that Cann‟s opposition to the motion reflected a misunderstanding
of the law of primary assumption of the risk. The concept focuses on the defendant‟s
conduct, not that of the plaintiff. Often the concept is applied to a spectator or bystander.
Participatory sports often result in accidental careless behavior. Cann‟s deposition
testimony made clear she did not know if she was hit by the weight bar or a weight plate.
She believed she was struck by the bar, based on its weight, but did not see the bar hit
her. In any event, the particulars of how the injury occurred are irrelevant to the
application of primary assumption of the risk. There is no requirement that Cann and
Stefanec engaged in the same specific exercise at the time of the injury for primary
assumption of the risk to apply.


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       Stefanec also filed objections to certain evidence submitted by Cann.


Ruling of the Trial Court


       The trial court determined that primary assumption of the risk applied and granted
summary judgment. All of Stefanec‟s evidentiary objections were overruled. Judgment
was entered for Stefanec. Cann filed a timely notice of appeal from the judgment entered
after summary judgment was granted.


                                       DISCUSSION


       Cann raises two issues on appeal.1 First, she argues the trial court erred in
applying the doctrine of primary assumption of the risk, because Cann and Stefanec were
not interacting and were not coparticipants in any competitive sport. Second, the doctrine
of primary assumption of the risk does not apply because Stefanec recklessly positioned
herself too close to where Cann was doing pushups and dropped a weight on her head.


Summary Judgment Standard of Review


       “Under Code of Civil Procedure section 437c, subdivision (c), summary judgment
„shall be granted if all the papers submitted show that there is no triable issue as to any


1      Cann argues in her reply brief that summary judgment was improperly granted
because there is a disputed material fact over how the accident occurred—Stefanec‟s
evidence was that the weight bar rolled onto Cann, while Cann testified at her deposition
the weight fell directly on her as she was prone. This point was mentioned only in a
footnote in the statement of facts in Cann‟s opening brief, rather than “under a separate
heading or subheading summarizing the point.” (Rule 8.204(a)(1)(B), Cal. Rules of
Court.) We are not required to address issues raised for the first time in a reply brief. In
any event, the question of exactly how Cann was injured, whether by a rolling weight or
being struck directly on her head, is not a material factual issue in regard to application
of primary assumption of the risk.


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material fact and that the moving party is entitled to a judgment as a matter of law.‟ The
purpose of summary judgment is not to resolve issues of fact, but rather to determine
whether there are issues of fact that must be resolved through a trial. (Molko v. Holy
Spirit Assn. (1988) 46 Cal.3d 1092, 1107, superseded by statute on other grounds as
stated in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853, fn. 19.) The
function of the trial court is solely to determine whether such issues of material fact exist
and not to decide the merits of the issues themselves. (Molko, at p. 1107.)
       “The determination of the trial court in ruling on a motion for summary judgment
is one of law based upon the papers submitted. (Lyons v. Security Pacific Nat. Bank
(1995) 40 Cal.App.4th 1001, 1013.) Upon review, we apply the same standard applicable
in the trial court, i.e., we independently review the record to determine whether there are
triable issues of material fact. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,
767.) In so doing, we view the parties‟ evidentiary submissions in the light most
favorable to the appellant as the losing party. (Id. at p. 768.)” (EHP Glendale, LLC v.
County of Los Angeles (2011) 193 Cal.App.4th 262, 270-271.)


The Doctrine of Primary Assumption of the Risk


       “„Although persons generally owe a duty of due care not to cause an unreasonable
risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically,
many sports—are inherently dangerous. Imposing a duty to mitigate those inherent
dangers could alter the nature of the activity or inhibit vigorous participation.‟ (Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) The primary
assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling
effect. (Ibid.; Knight v. Jewett [(1992)] 3 Cal.4th [296,] 308 [(Knight)].) Where the
doctrine applies to a recreational activity, operators, instructors and participants in the
activity owe other participants only the duty not to act so as to increase the risk of injury
over that inherent in the activity. (Avila v. Citrus Community College Dist. (2006) 38




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Cal.4th 148, 162; Kahn, at p. 1004.)” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th
1148, 1154 (Nalwa).)
       As our Supreme Court recently held, “the primary assumption of risk doctrine is
not limited to activities classified as sports, but applies as well to other recreational
activities „involving an inherent risk of injury to voluntary participants . . . where the risk
cannot be eliminated without altering the fundamental nature of the activity.‟ (Beninati v.
Black Rock City, LLC [(2009)] 175 Cal.App.4th [650,] 658.)” (Nalwa, supra, 55 Cal.4th
at p. 1156.) The Nalwa court explained, “[t]he policy behind primary assumption of risk
applies squarely to injuries from physical recreation, whether in sports or nonsport
activities. Allowing voluntary participants in an active recreational pursuit to sue other
participants or sponsors for failing to eliminate or mitigate the activity‟s inherent risks
would threaten the activity‟s very existence and nature. . . . But active recreation,
because it involves physical activity and is not essential to daily life, is particularly
vulnerable to the chilling effects of potential tort liability for ordinary negligence.”
(Nalwa, supra, 55 Cal.4th at p. 1157, fn. omitted.)


Analysis


       Cann‟s argument that the doctrine of primary assumption of the risk does not
apply because she and Stefanec were not coparticipants in a sport fails for two reasons.
First, as a factual matter, they were coparticipants in a training session consisting of a
circuit of three exercises for the purpose of adding strength as swimmers. Second, after
the decision in Nalwa, it is of no moment whether the circuit training by Cann and
Stefanec is characterized as a sport or recreation, as the doctrine of primary assumption
of the risk applies to both types of activity.
       Cann and Stefanec were members of the UCLA women‟s swim team. Team
members were required to use the weight room for strength training. Cann and Stefanec
were participating, at the same time, in circuit training consisting of rotation through
three different exercises. Cann‟s argument that she and Stefanec were not coparticipants


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because they “were engaged in different activities”—Cann doing pushups while Stefanec
was performing step-ups—is far too narrow an interpretation of what was taking place.
The undisputed evidence demonstrates the athletes were coparticipants in designated
exercises as part of a program to increase their strength as swimmers. That Cann was
doing one of the circuit exercises while Stefanec performed another does not establish
that they were not coparticipants. To the contrary, all of the evidence indicates they were
in the weight room at the same time as teammates performing the same set of exercises as
part of a training regimen.
       Moreover, application of primary assumption of the risk is not limited to situations
in which a plaintiff is engaged in the exact same activity as the party causing the injury.
“„Duties regarding the same risk may differ depending on the role played by the particular
defendant. In the sporting context, for example, a defendant could be in the role of
“coparticipant, passive observer, instructor, coach, owner of the venue in which the sport
is played, or supplier of the equipment used in the sport.” (Peart v. Ferro (2004) 119
Cal.App.4th 60, 72.)‟ (Saville [v. Sierra College (2005)] 133 Cal.App.4th [857,] 870.)”
(Towns v. Davidson (2007) 147 Cal.App.4th 461, 468 [primary assumption of the risk
applies to bar recovery for injuries suffered by recreational skier as a result of negligent
conduct by employee of ski operator]; Lilley v. Elk Grove Unified School Dist. (1998) 68
Cal.App.4th 939, 943-944 (Lilley) [recovery for broken arm suffered by wrestler when
coach demonstrated a technique precluded by primary assumption of the risk].)
       On the issue of duty, we have no difficulty in making a judicial determination that
weight lifting involves an inherent risk of injury to persons in the vicinity of lifters who
drop weights because of a loss of balance, injury suffered during a lift, or other reasons.
(See Nalwa, supra, 55 Cal.4th at p. 1158 [judges may rely on their own or common
experience with recreational activity in deciding “inherent risk questions”].) Logic, and
the undisputed facts tendered by both sides on the summary judgment motion in this case,
support this conclusion.
       Cann testified in deposition that swimmers were instructed to drop the weight bar
“if it‟s too much weight,” she had dropped the bar when “maxing out” on the exercise,


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and had seen others do the same. Stefanec testified the swimmers were instructed to drop
the bar if they lost their balance. Two other swimmers gave deposition testimony that a
coach had instructed the weight should be dropped if the lifter lost her balance. One of
these swimmers had seen weights dropped two or three times in the middle of an
exercise. Based on this evidentiary record, the trial court correctly concluded that Cann
and Stefanec were engaged in either sporting or recreational activity that involved an
inherent risk of danger of being injured by a dropped weight.
       Cann further argues that primary assumption of the risk does not apply “because
liability for Cann‟s injuries while Stefanec was lifting weights and Cann was doing
pushups will not alter the fundamental nature of either activity by deterring participants
from vigorously engaging in weight lifting or pushups . . . because neither activity entails
a risk of head injury from weights.” While we have no quarrel with the legal principle
Cann relies upon, it does not apply in this case.
       “Even if the activity is one to which the primary assumption of risk applies, there
are certain risks that are deemed not assumed, and certain injury-causing actions that are
not considered assumed risks of the activity. The primary assumption of risk rule „does
not grant unbridled legal immunity to all defendants participating in sporting activity.
The Supreme Court has stated that “. . . 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, supra,] 3 Cal.4th at pp. 315-316 . . . .) Thus, even
though “defendants generally have no legal duty to eliminate (or protect a plaintiff
against) risks inherent in the sport itself,” they may not increase the likelihood of injury
above that which is inherent. (Id. at p. 315.)‟ (Campbell v. Derylo (1999) 75
Cal.App.4th 823, 827.) Conduct is not inherent in the sport if that conduct is „totally
outside the range of ordinary activity involved in the sport . . . [and] if the prohibition of
that conduct would neither deter vigorous participation in the sport nor otherwise
fundamentally alter the nature of the sport.‟ (Freeman v. Hale [(1994)] 30 Cal.App.4th
[1388,] 1394.) A participant injured in a sporting activity by another participant may
recover from that coparticipant for intentional infliction of injury or tortious behavior „so


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reckless as to be totally outside the range of the ordinary activity involved in the sport‟
but not for mere negligence. (Knight, supra, 3 Cal.4th at pp. 320-321.)” (Moser v.
Ratinoff (2003) 105 Cal.App.4th 1211, 1221-1222.)
       Weight training involves the risk that the weight will be dropped. As such,
Stefanec‟s conduct after she lost her balance was not totally outside the range of ordinary
activity of the sport. Contrary to Cann‟s argument, imposing liability for the conduct in
this case would alter the fundamental nature of the activity. By all accounts, Stefanec
followed the training instructions she and Cann received when she dropped the weight
behind her after losing her balance. Subjecting a lifter to liability for merely dropping a
weight near herself would, in fact, alter the conduct of the sport. This is particularly so
where, as here, there is no evidence Stefanec was lifting an unusually heavy amount of
weight.
       Cann has repeatedly argued that primary assumption of the risk does not apply
because she did not impliedly consent to having a weight dropped on her head. However,
a plaintiff‟s expectation does not define the limits of primary assumption of the risk.
“Primary assumption of risk focuses on the legal question of duty. (Cheong v. Antablin
[(1997)] 16 Cal.4th [1063,] 1067-1068.) It does not depend upon a plaintiff‟s implied
consent to injury, nor is the plaintiff‟s subjective awareness or expectation relevant. (Id.
at p. 1068; [Knight,] supra, 3 Cal.4th at pp. 312-313.)” (Lilley, supra, 68 Cal.App.4th at
p. 943.)
       Finally, there is no merit to Cann‟s argument that primary assumption of the risk
did not apply because Stefanec engaged in reckless conduct. (Knight, supra, 3 Cal.4th at
p. 320 [athlete does not assume the risk of a coparticipant‟s intentional or reckless
conduct outside the range of ordinary activity of the sport].) Stefanec was following the
instructions of the coach, which Cann herself had followed, by allowing the weight to
drop behind her for safety. There is no evidence she dropped the weight intending to hurt
any person, including Cann. Dropping the weight as instructed for safety purposes does
not begin to approach conduct that falls “„outside the range of ordinary activity involved
in the sport.‟” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 165


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[pitcher who intentionally threw at a batter at the direction of his coach did not engage in
reckless conduct outside the range of ordinary activity involved in baseball].) Stefanec‟s
conduct bears no resemblance to what occurred in Yancey v. Superior Court (1994) 28
Cal.App.4th 558, in which a discus was recklessly thrown by an athlete who did not first
look to see if the area was clear. Cann was confronted with a situation in which she lost
control of the weight bar and, consistent with the instructions provided by the coach,
dropped the bar behind her. No evidence of reckless conduct exists in this case.


                                      DISPOSITION


       The judgment is affirmed. Costs on appeal are awarded to respondent Annie
Stefanec.




                                                                KRIEGLER, J.


We concur:


              TURNER, P. J.




              O‟NEILL, J.*




*     Judge of the Ventura County Superior Court assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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