Filed 5/29/14 Big League Dreams Chino Hills v. Super. Ct. CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 TWO



BIG LEAGUE DREAMS CHINO HILLS,
LLC,
                                                                         E060596
         Petitioner,
                                                                         (Super.Ct.No. CIVRS1102289)
v.
                                                                         OPINION
THE SUPERIOR COURT OF
SAN BERNARDINO COUNTY,

         Respondent;

BRIAN HUTCHISON,

         Real Party in Interest.




         ORIGINAL PROCEEDINGS; petition for writ of mandate. Keith D. Davis,

Judge. Petition granted.

         Daley & Heft, Lee H. Roistacher, Robert H. Quayle IV, and Christopher M. Busch

for Petitioner.

         No appearance for Respondent.



                                                             1
       Brown & Charbonneau, Gregory G. Brown, Eileen M. Solis; Gibson & Hughes,

Jeffrey S. Hughes, Robert B. Gibson; and Donna Bader for Real Party in Interest.

       In this case, we conclude that the doctrine of primary assumption of the risk bars a

claim against the operator of a softball field by a player who collided with another player,

sustaining injury when he fell against the concrete footing of the fence surrounding the

field. Accordingly, we grant the petition for writ of mandate and direct the trial court to

grant summary judgment for petitioner.1

                  FACTUAL AND PROCEDURAL BACKGROUND

       Real party in interest Hutchison participated in a softball tournament at a field

controlled by petitioner, Big League Dreams Chino Hills, LLC. The game took place at a

field known as the Yankee Stadium replica field. Hutchison was playing shortstop and

he raced out to catch a fly ball over his head. He collided with the left fielder. The

collision occurred in foul territory just short of the warning track. Hutchison fell and hit

his head on the concrete base of the fence.

       Hutchison sues petitioner for premises liability, alleging that it increased the risk

of injury by failing to eliminate or warn him about the footing.




       1 The court has read and considered the record in this proceeding, the petition,
and the response. We have concluded that an alternative writ would add nothing to the
presentation already made and would cause undue delay in resolving this matter. We
therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v.
U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior
Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another ground in Hassan v.
Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)


                                              2
       Petitioner moved for summary judgment on the ground of primary assumption of

the risk. It argued that the footing did not increase the risk of Hutchison colliding or

falling, although arguable it may have increased the severity of his injury. It compared

its situation to that of the ski resort operator in Connelly v. Mammoth Mountain Ski Area

(1995) 39 Cal.App.4th 8, who had no duty to pad ski lift towers. It also argued that

stationary objects in foul territory are an inherent risk of the sport of softball and the foul

fence here was part of the construction of the field and was designed in part to prevent

players from running and slipping on the adjacent sidewalk or collide with the light pole

       Hutchison argued that stationary objects in foul territory are not an inherent risk,

and that the mow ban was not within acceptable design plans for the City of Chino or

petitioner’s own policies for maintenance of the field. It relies on petitioner’s

maintenance chief, Ybarra, who stated he wanted the warning track to be level with the

mow band. Hutchison also produced expert testimony from Brad Avrit, a civil engineer,

stating that the mow band was in dangerous condition because it was exposed and it was

foreseeable that players would come into contact with the area, possibly increasing the

severity of the injury. Avrit also opined that the defendants failed to properly maintain

the subject area because the dirt from the warning track should be flush with the curb. It

was not, exposing the vertical portion of the concrete curb.

       The trial court denied summary judgment, finding that primary assumption of the

risk did not apply because the concrete base was not an open and obvious condition.

While it was evident on close viewing, “[w]hat’s open and obvious to a ball player . . . is



                                               3
where the bases are located, what the general condition of the base pads is, what the

outfield looks like, where the fences are for purposes of home runs and so forth, and that

there might be some dirt or grass areas and all that. But specifics as to how it is the fence

is being secured, whether or not there’s something underneath the fence, all of that, I

think that is probably something that is obvious only to a player who’s there and certainly

not obvious to, let’s say, the pitcher standing on the pitching mound, and that causes me

to think that perhaps the doctrine does not apply.”

                                        DISCUSSION

       As a general rule, each person has a duty to use ordinary care and is liable for

injuries caused by his or her failure to exercise reasonable care in the circumstances.

(Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).) Under the doctrine of primary

assumption of risk, however, there is no duty to eliminate or protect a participant in a

sport or recreational activity against risks inherent in that sport or activity; but

participants do not impliedly assume the risk of actions by the defendant that increase the

risk of harm inherent in the sport or recreational activity. (Calhoon v. Lewis (2000) 81

Cal.App.4th 108, 115-116 (Calhoon).) This principle extends to those risks associated

with the construction of the playing field and any open and obvious condition thereon.

       The question of assumption of risk is amenable to resolution by summary

judgment, since the existence and scope of the defendant’s duty of care is a legal question

depending on the nature of the sport or activity and on the parties’ general relationship to

the activity. (Knight, supra, 3 Cal.4th at p. 313.)



                                               4
       In Calhoon, the plaintiff skateboarded on his friend’s driveway. He fell into a

planter and was injured by a metal pipe inside the planter. He sued his friend’s parent,

who had placed the planter in the driveway. He contended that he had not assumed the

risk of such an injury, claiming that the case fell within an exception to the assumption of

the risk doctrine, providing that: “ ‘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.’ [Citation.] [Plaintiff

claimed the defendants] breached their duty because they increased the risks of

skateboarding over and above that inherent in the sport by ‘concealing’ a metal pipe in a

planter in their driveway.” (Calhoon, supra, 81 Cal.App.4th at p. 116.) The Court of

Appeal disagreed, stating that “the pipe did not increase [plaintiff]’s risk of injury in the

sport. [Plaintiff] was injured because he fell. As [plaintiff] concedes, falling is an

inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to

do with his falling down. The fact that [plaintiff]’s injuries were more severe than they

would have been if the pipe had not been in the planter does not make the assumption of

risk doctrine inapplicable. The Knight exception applies when the defendant increased

the risk of injury beyond that inherent in the sport, not when the defendant’s conduct may

have increased the severity of the injury suffered. (See Connelly v. Mammoth Mountain

Ski Area[, supra,] 39 Cal.App.4th 8, 12 [defendant ski resort operator did not increase

risk of injury by failing to pad ski lift towers; although the injury would have been less



                                                5
severe if there had been pads ‘there was no evidence [the ski area] did or failed to do

anything that caused [the plaintiff] to collide with the tower’].) [Plaintiff]’s focus on the

fact that he was unaware of the pipe is misplaced. The assumption of risk doctrine is an

objective test and ‘does not depend on the particular plaintiff’s subjective knowledge or

appreciation of the potential risk.’ ” (Calhoon, at p. 116.)

       As in Calhoon, increasing the severity of the injury is not the test—increasing the

risk of injury is.

       Plaintiff distinguishes Calhoon because it involved a residential landowner and not

a sports facility that has a duty to provide a safe playing field. While that is a distinction,

Calhoon’s analysis regarding the nature of the risk assumed (risk of injury versus risk of

severity of injury) remains applicable in this situation. Calhoon explained that even if the

defendants had increased the risk of harm to the plaintiff, the doctrine would still apply

because the defendants, as residential property owners, had no “organized relationship”

with the plaintiff. (Calhoon, supra, 81 Cal.App.4th at p. 117.) Here, petitioner does have

an organized relationship, but it did not increase the risk of harm. The issue then

becomes whether petitioner increased the risk inherent in the sport. In this case, the risk

is the risk of colliding and/or falling. Petitioner’s design and maintenance of the field did

not increase the risk of colliding or falling when trying to catch a ball.

       Compare Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193,

where a design of a particular jump at a BMX motocross course with acute slope created

an extreme risk of injury. The court acknowledge that jumps, and falls, were an inherent



                                               6
risk of the sport and under the doctrine of primary assumption of risk, there is no duty to

eliminate the jumps entirely, and no duty to protect from injury arising from reasonably

designed jumps. However, the court concluded that the sport does not inherently require

jumps that are designed in such a way as to create an extreme risk of injury. In that case,

the appellate court found that defendant had increased the risk of falling.

       Also see Van Dyke v. S.K.I. Ltd. (1998) 67 Cal.App.4th 1310, 1317, where the

court, in reversing grant of summary judgment in favor of a ski resort owner, noted that

when a ski area puts signs in a ski run, it has a duty to mark the signs so they are plainly

visible from all angles to skiers who are skiing on the run. In that case, the court held

that the defendant had increased the risk of harm by placing a signpost where it was

virtually invisible to skiers crossing over to the connector trail to a chair lift. There, the

placement increased an inherent risk of skiing—running into something.

       In this case, there is an inherent risk of colliding with other players or the fence,

falling while trying to make a play, or even tripping over a base. Petitioner notes that

there are no published California decisions expressly discussing inherent risks created by

structures that make up the playing field. However, there are analogous cases involving

skiing. In Souza v. Squaw Valley Ski Corp. (2006) 138 Cal.App.4th 262, 267, it was held

that defendant ski resort had no duty to decrease the risk of injury by padding snow

making equipment. In Connelly v. Mammoth Mountain Ski Area, supra, 39 Cal.App.4th

8, the defendant ski resort had no duty to pad the ski lift tower.




                                               7
       Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, noted that

features both on and off the court constitute inherent risks in playing basketball: “[W]e

also conclude that the risk of injury is not confined to the boundaries of the court. The

risk inherent in the game extends beyond those lines and involves common occurrences,

as when a player is shoved out of bounds, or his momentum when diving for the ball or

driving to the basket propels him past the base line. An interested person need only turn

on one of the week’s many televised basketball games to see players falling, running or

being pushed out of bounds onto reporters’ tables, television cameras or fans seated near

the court. Running into obstacles close to the sidelines must be considered an inherent

risk of the game. The danger of an unpadded concrete wall, four feet beyond the

boundaries, should have been apparent to anyone playing a full-court game of basketball

in that gym. This is especially pertinent here since plaintiff testified he had played

basketball in that gym previously and knew the wall was unpadded. This wall was not a

‘hidden trap’ created by defendant school district.” (Id. at p. 1520.)

       Several out-of-state cases support the principle of assumption of the risk extending

to those risks associated with the construction of the playing field and any open and

obvious condition thereon. In Castro v City of New York (2012) 94 A.D.3d 1032, 1033,

the plaintiff could not recover for injuries sustained when he fell on a raised sewer drain

while playing softball on a cement yard. In Brown v. City of New York (2010) 69 A.D.3d

893, 894, the plaintiff was injured while playing touch football at a public field owned by

the defendant when he dove for the football at the sideline and his knee struck a cement



                                              8
strip, which ran alongside the field approximately five feet outside of the sideline. The

plaintiff had played at the field previously and was aware of the presence of the cement

strip, which was open and obvious. He was precluded from recovering, having failed to

raise any triable issue of fact

       Here, the trial court found that the cement base was not open and obvious, noting

that a pitcher would not necessarily notice it. This view is too narrow. The fence and its

base is part of the construction of this field. The base is not hidden and is apparent from

a casual inspection. Even Hutchison’s opposition is based on the fact that the concrete is

exposed. The application of primary assumption of the risk does not depend on the

particular plaintiff’s subjective knowledge of a particular feature of the field because, as a

matter of law, he would have known of the risk of colliding, falling, and/or hitting a

stationary object on the boundary of the playing field. (Knight, supra, 3 Cal.4th at

p. 316.)

       Moreover, the exposed concrete footing does not increase the risk of colliding

and/or falling and striking fixed objects, although the exact type of and severity of injury

might have changed, as in Calhoon. We conclude that the doctrine of primary

assumption of the risk applies, barring Hutchison’s claim

                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the Superior Court of San

Bernardino County to set aside its order denying petitioner’s motion for summary

judgment and to enter a new order granting the motion.



                                              9
       Petitioner is directed to prepare and have the peremptory writ of mandate issued,

copies served, and the original filed with the clerk of this court, together with proof of

service on all parties.

       Petitioner is to recover its costs.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS




                                                                 McKINSTER
                                                                                 Acting P. J.


We concur:


RICHLI
                            J.

CODRINGTON
                            J.




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