Filed 6/22/16 Lee v. San Joaquin Delta Community College Dist. CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                    (San Joaquin)
                                                            ----




POR LEE,

                   Plaintiff and Appellant,                                                  C075234

         v.                                                                        (Super. Ct. No. 39-2009-
                                                                                   00225139-CU-PO-STK)
SAN JOAQUIN DELTA COMMUNITY COLLEGE
DISTRICT et al.,

                   Defendants and Respondents.


         During a six-week basic swimming class offered by the San Joaquin Delta
Community College District (District), appellant Por Lee learned to float and to swim
well enough that he was allowed to swim at least once in the deep end of the pool before
the fifth week of class. During the fifth week of class, instructor Michael Maroney
declared a free swim period when students were allowed to swim as they saw fit. During
the free swim, Lee nearly drowned when he and his friend tried to touch the bottom of a
13-foot-deep area of the pool.




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         Lee sued the District, Maroney, and Nick Fadden -- the lifeguard who pulled Lee
to the surface. The defendants moved for summary judgment on grounds Lee’s cause of
action was barred by the doctrine of primary assumption of the risk. The trial court
granted the motion for summary judgment and entered a judgment of dismissal.
         On appeal, Lee contends (1) triable issues of material fact bar summary judgment
even if the doctrine of primary assumption of the risk applies, (2) he has stated a viable
cause of action for negligent undertaking, and (3) the trial court erroneously refused to
consider the opinions of his expert regarding unreasonably unsafe conditions of the swim
class.
         We conclude the doctrine of primary assumption of risk applies to the activity of
recreational swimming and bars Lee’s claims for negligence. Lee has forfeited the
contention regarding his expert’s opinions by omitting any description of the opinion his
expert offered. Accordingly, we affirm the judgment of dismissal.
                        FACTUAL AND PROCEDURAL HISTORY
         Lee filed a complaint alleging a single cause of action for negligence against the
District, Maroney, and Fadden. According to the complaint, defendants failed to properly
supervise or monitor the swim class in which Lee nearly drowned.
         Defendants moved for summary judgment on grounds the doctrine of primary
assumption of the risk defeated Lee’s cause of action for negligence. In support of the
motion, defendants asserted the following as undisputed material facts: At the time of
the incident, Lee was 19 years old and a student at the District. In the summer of 2008,
Lee enrolled in a 6-week basic swimming class that met 4 days a week for 2 hours at
a time. The class was taught by District employee Michael Maroney, who also acted
as a swim coach and taught water polo. When Lee enrolled, he did not know how to
swim.




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       During the class, Maroney taught students how to float and swim using freestyle
by breathing when they turned their heads to the side. During the class, Lee learned to
float with his face in the water, float on his back, and swim freestyle. During free swim
periods, Lee practiced by swimming back and forth in the shallow end of the pool. By
the time of the incident, Lee was able to swim approximately 25 yards across the short
width of the pool without stopping or resting on the lane lines. Lee was allowed to lap
swim and go into the deep end of the pool. Lee swam at least once in the deep end of the
pool before the day of the incident.
       Lee never refused to go into the deep part of the pool or ever told Maroney he was
not comfortable in the water. Also, Lee never expressed any complaints about how
Maroney conducted the swim class.
       At the end of the fifth week of class, there was a free swim period during which
Lee was allowed to swim as he saw fit. During the free swim, two lifeguards -- Nick
Fadden and Paul Woodruff -- were present on the pool deck along with Maroney. The
lifeguards were employed by the District. Fadden was stationed at the deep end of the
pool and Woodruff at the shallow end.
       Lee and his classmate and friend No-Ae Vang started swimming at the shallow
end of the pool and worked their way over to a 9-foot deep section. Lee and Vang then
moved to the 13-foot-deep section of the pool. Vang decided to try to touch the bottom
of the pool with his feet and then spring up to the surface. Lee decided to join him. Lee
and Vang went close to the bottom of the pool. Vang sprang to the surface and then saw
Lee underwater moving his arms and legs. Vang did not call for help because he did not
think Lee was in distress. Vang went underwater three more times before calling for
help. Fadden quickly entered the pool and pulled Lee to the surface with the help of a
student, Willard Maynard. Fadden towed Lee to the edge of the pool where Lee was
pulled from the pool by Maroney. Lee was unconscious and bleeding. Maroney



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administered rescue breaths and Lee began breathing. Lee was transported by ambulance
to St. Joseph’s Hospital and later by air ambulance to University of California at Davis
Medical Center. Lee was subsequently discharged from the UC Davis Medical Center
and is currently living in Stockton with his wife.
       Lee opposed the motion for summary judgment on grounds the doctrine of
primary assumption of the risk did not bar his claim for negligence. Lee reasoned
Maroney and Fadden’s undertaking to rescue Lee rendered them liable to the extent they
did not use reasonable care. Lee asserted he was never able to swim more than one-third
the distance of the 25-yard width of the pool without the aid of a float. Lee also alleged
that at the time of the incident, Maroney was not looking at the pool or supervising his
students. Instead, Maroney was working on his clipboard and computer. When Lee went
underwater, Fadden was walking to the lifeguard office to retrieve something. By the
time Lee was pulled to the surface, he had been underwater between one and three
minutes.
       Defendants filed a reply to the opposition to the motion for summary judgment.
Defendants asserted Lee had not introduced any evidence to show Maroney or Fadden
increased any risk inherent in the sport of swimming. Absent any evidence of reckless
conduct by Maroney or Fadden, defendants argued summary judgment was proper.
       The trial court granted the motion for summary judgment for defendants on
the basis the doctrine of primary assumption of the risk applied to the activity of
swimming. The trial court noted drowning is an inherent risk in the activity of
swimming. And the court found defendants did nothing to increase the risks of
swimming nor did they coerce Lee to attempt to swim beyond his abilities. Even if
Lee could assert a cause of action for negligence, the trial court concluded he alleged no
facts establishing a breach of any duty owed by the defendants. As a result, the trial
court entered a judgment of dismissal.



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       Lee timely filed a notice of appeal.
                                          DISCUSSION
                                                 I
                                       Standard of Review
       As the California Supreme Court has explained, “A motion for summary judgment
‘shall be granted if all the papers submitted show that there is no triable issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.’
(Code Civ. Proc., § 437c, subd. (c).) A defendant ‘has met his or her burden of showing
that a cause of action has no merit if that party has shown that one or more elements of
the cause of action . . . cannot be established. . . .’ (Id., subd. (p)(2).) Upon such a
showing, ‘the burden shifts to the plaintiff . . . to show that a triable issue of one or more
material facts exists as to that cause of action. . . .’ (Ibid.)
       “ ‘On review of an order granting or denying summary judgment, we examine the
facts presented to the trial court and determine their effect as a matter of law. . . .
[D]efendant asserted, and the trial court found, that plaintiff’s evidence failed to establish
the “duty” element of plaintiff’s cause of action for negligence. Duty, being a question of
law, is particularly amenable to resolution by summary judgment.’ (Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 464–465.)” (Nalwa v. Cedar Fair, L.P. (2012) 55
Cal.4th 1148, 1153-1154 (Nalwa).)
       In this case, we consider whether the undisputed facts presented to the trial court
supported the conclusion the doctrine of primary assumption of the risk barred Lee’s
negligence claim and compelled a judgment of dismissal.




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                                              II
                              Primary Assumption of the Risk
       Lee contends the doctrine of primary assumption of the risk does not bar his claim
for negligence because defendants undertook a duty to safeguard him during the basic
swimming class. We disagree.
                                              A.
             Swimming and the Doctrine of Primary Assumption of the Risk
       Participation in sports activities is generally subject to the doctrine of primary
assumption of the risk. (Knight v. Jewett (1992) 3 Cal.4th 296, 315–316 (Knight v.
Jewett).) As the California Supreme Court has explained, “ ‘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, supra,
3 Cal.4th at p. 308.) 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 Cal.4th 148, 162; Kahn, at pp. 1004, 1006.)”
(Nalwa, supra, 55 Cal.4th at p. 1154.) In other words, under the primary assumption
of risk doctrine, “participants in and operators of certain activities have no duty of
ordinary care to protect other participants from risks inherent in the activity.” (Nalwa, at
p. 1152.)
       The doctrine of primary assumption of the risk applies broadly to competitive and
noncompetitive sports activities. As the Nalwa court noted, case law has applied primary



                                               6
assumption of the risk “to include physical but noncompetitive recreational activities (see
Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221 [organized, noncompetitive group
bicycle ride]; Record v. Reason (1999) 73 Cal.App.4th 472, 482 [‘tubing,’ i.e., riding an
inner tube towed by a motor boat]) or by assessing the nature of a recreational activity
without attempting to classify it as a sport or nonsport (see Ferrari v. Grand Canyon
Dories (1995) 32 Cal.App.4th 248, 253–254, 38 Cal.Rptr.2d 65 [riding in commercially
operated river raft].)” (Nalwa, supra, 55 Cal.4th at p. 1156.) In essence, the primary
assumption of the risk doctrine recognizes that for some activities “the risk cannot be
eliminated without altering the fundamental nature of the activity.” (Ibid.)
       Swimming is an activity with inherent risks. As one court recognized, “There are
risks inherent in the sport of swimming, such as drowning, hitting the wall or pool floor,
or colliding with another swimmer.” (Capri v. L.A. Fitness Intern., LLC (2006) 136
Cal.App.4th 1078, 1088 (Capri).) Moreover, learning to swim carries additional risks
arising out of lack of experience and ability in the water. Indeed, the process of learning
to engage in many sports includes heightened risks arising out of undeveloped skills.
Thus, cases “properly recognize that while a student is engaged in the process of learning,
he or she frequently is at greater risk than a proficient athlete would be, and a coach does
not have a duty to eliminate all the risks presented by inexperience.” (Kahn v. East Side
Union High School Dist. (2003) 31 Cal.4th 990, 1003, 1011 (Kahn).) For this reason,
“[a] sports instructor may be found to have breached a duty of care to a student or athlete
only if the instructor intentionally injures the student or engages in conduct that is
reckless in the sense that it is ‘totally outside the range of the ordinary activity’ ([Knight
v. Jewett, supra, 3 Cal.4th at p. 320]) involved in teaching or coaching the sport.” (Kahn,
at p. 996.)
       Given swimming’s inherent risks of drowning and injury by hitting the bottom of
a swimming pool, we conclude the doctrine of primary assumption of the risk applies.



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(Nalwa, supra, 55 Cal.4th at pp. 1156-1157; Capri, supra, 136 Cal.App.4th at p. 1088.)
The risks of drowning are especially acute for inexperienced swimmers, but are risks that
cannot be eliminated without changing the fundamental nature of being in water. We
further conclude defendants are not liable for a breach of their duty of care to Lee unless
the defendants engaged in reckless conduct that increased the dangers of swimming for
Lee. (Kahn, supra, 31 Cal.4th at p. 996.) Based on this standard, we reject Lee’s
assertion he was “only required to prove that the Defendants’ failure to use reasonable
care increased the risks to him over and above those inherent in his participation in the
basic swim class.” (Italics added.) Under Kahn, the doctrine of primary assumption of
the risk bars a negligence claim in the absence of proof of a defendant’s reckless conduct.
(Kahn, at p. 996; see also Knight v. Jewett, supra, 3 Cal.4th at p. 320.)
       Lee presented no evidence defendants did anything to increase the risk of
swimming for him. Instead, Lee assumed the risks of swimming in the deep end of the
pool and trying to touch the bottom of the deep section. Although Lee faults Maroney
and Fadden for being inattentive to his plight, he also asserts no fact showing they
increased his risks in the water. In short, Lee alleges no fact that renders Maroney or
Fadden’s actions reckless.
       Lee’s claims against Maroney and Fadden are barred by primary assumption of the
risk. Because Lee’s claim against the District is based entirely on its status as Maroney
and Fadden’s employer, our conclusion that no action lies against Maroney and Fadden
also compels the result he has no viable claim against the District. The trial court
correctly concluded the doctrine of primary assumption of the risk bars Lee’s claims
against defendants.




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                                              B.
                                   Negligent Undertaking
       Lee contends he should be allowed to proceed with a claim for negligent
undertaking because defendants accepted responsibility for safeguarding him as a basic
swimming course student. Lee notes Fadden’s very role was that of lifeguard for
swimmers and Maroney undertook to teach students how to be safe in water. We reject
the argument Lee may assert a cause of action for negligent undertaking.
       Under the doctrine of negligent undertaking “ ‘ “it is settled law that one ‘who,
having no initial duty to do so, undertakes to come to the aid of another the -- “good
Samaritan” ’ -- has ‘a duty to exercise due care in performance and is liable if (a) his [or
her] failure to exercise care increases the risk of such harm, or (b) the harm is suffered
because of the other’s reliance upon the undertaking.’ (Williams v. State of California
(1983) 34 Cal.3d 18, 23, citing Rest.2d Torts, § 323; see, e.g., Coffee v. McDonnell–
Douglas Corp. (1972) 8 Cal.3d 551, 557 [same]; see also BAJI No. 4.45 [‘A person who
is under no duty to care for or render service to another but who voluntarily assumes such
a duty, is liable to the other for injury caused by a failure to exercise ordinary or
reasonable care in the performance of that assumed duty’].)” (Artiglio v. Corning Inc.
(1998) 18 Cal.4th 604, 613.)
       Here, the doctrine of primary assumption of risk applies to preclude a negligence
undertaking cause of action. Lee’s injury flowed directly from the inherent danger of the
sport in which he was engaged. “The policy behind primary assumption of risk applies
squarely to injuries from physical recreation, whether in sports or nonsport activities.”
(Nalwa, supra, 55 Cal.4th at p. 1157.)
       Allowing Lee to proceed on a cause of action for negligent undertaking would run
contrary to the “need to avoid chilling vigorous participation in or sponsorship of
recreational activities by imposing a tort duty to eliminate or reduce the risks of harm



                                               9
inherent in those activities. It operates on the premise that imposing such a legal duty
‘would work a basic alteration -- or cause abandonment’ of the activity. (Kahn v. East
Side Union High School Dist., supra, 31 Cal.4th at p. 1003; see also Shin v. Ahn [(2007)]
42 Cal.4th [482,] 492, quoting Dilger v. Moyles (1997) 54 Cal.App.4th 1452, 1455, [‘
“Holding [golfers] liable for missed hits would only encourage lawsuits and deter players
from enjoying the sport” ’]; Avila v. Citrus Community College Dist. [(2006)]38 Cal.4th
[148,] 165 [in baseball, recognizing tort liability for hitting the batter with a pitch would
tend to deter throwing inside, an essential part of the sport]; Ford v. Gouin [(1992)] 3
Cal.4th [339,] 345 [imposing tort liability for negligence in towing water-skier might well
chill participation and ‘have a generally deleterious effect on the nature of the sport of
waterskiing as a whole’]; Knight, supra, 3 Cal.4th at p. 318 [doctrine avoids chilling
vigorous participation in sport].) The doctrine’s parameters should be drawn according
to that goal.” (Nalwa, supra, 55 Cal.4th at pp. 1156-1157.)
       In sum, Lee’s negligence claims are barred by the doctrine of primary assumption
of the risk.
                                              II
               Exclusion of Expert Opinion on the Question of Legal Duty
       Lee contends the trial court erred in excluding the opinion of his expert witness on
water safety. However, Lee’s briefs on appeal do not describe any part of the opinion he
asserts were wrongly excluded. His argument lacks any factual analysis. However, “[i]t
is an established rule of appellate procedure that an appellant must present a factual
analysis and legal authority on each point made or the argument may be deemed waived.”
(People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104
Cal.App.4th 1189, 1200.) As this court has previously noted, “[w]e need not address
points in appellate briefs that are unsupported by adequate factual or legal analysis.”
(Placer County Local Agency Formation Com’n v. Nevada County Local Agency



                                              10
Formation Com’n (2006) 135 Cal.App.4th 793, 814.) Lee has forfeited his contention
that the trial court erroneously excluded the opinion of his expert witness.
                                      DISPOSITION
       The judgment is affirmed. Respondents San Joaquin Delta Community College
District, Michael Maroney, and Nick Fadden shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1) & (2).)




                                                              /s/
                                                  HOCH, J.



We concur:



         /s/
BLEASE, Acting P. J.



             /s/
BUTZ, J.




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