A. V. vs. Brea Olinda Unified School District

As applicable here, this means that “a coach or sport instructor owes a duty to a student not to increase the risks inherent in the learning process undertaken by the student.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 996, 1005-1006, 1011.) More specifically, a coach owes a duty to not increase the risks to a student by acting “recklessly” or “ ‘totally outside the range of the ordinary activity’ involved in teaching or coaching the sport.” (Id. at p. 996.)

The complaint plainly alleges that the JV cheerleading coach, Haleigh Egge, did not have the proper training, qualifications, or certifications to teach acrobatic cheerleading to plaintiff or anyone else on the cheer team. (Compl. ¶ 17.) As a result, Egge failed to follow any basic injury or concussion protocols after plaintiff fell and hit her head on no less than three separate occasions during a single practice, and instructed plaintiff to return to the stunt even after she complained of pain and disorientation and began exhibiting obvious signs of a concussion, causing her to fall and strike her head again. (Id. ¶¶ 17-19.)

Multiple percipient witnesses, including the girls involved in the stunt, have testified that Egge was in fact coaching the JV team that day, as well as coaching and directing the stunt. (See Angeloff Decl. ¶¶ 5-7, Exs. 3-5.) Defendant has admitted that Egge did not have the required safety certifications to be coaching at the time of the incident on 8/22/23, including the certification for concussion training. (Angeloff Decl. ¶ 3, Ex. 1 [defendant’s responses to RFA Nos. 10-13].) Defendant has further admitted that “Egge was not cleared to coach until September 18th, so she should not have made any effort in determining the competency of students to perform stunts on August 22nd,” and that “[p]er [defendant] BOUSD policies, ... until coaches are cleared by the district, they are not to work with students.” (Id. ¶ 4, Ex. 2 [defendant’s response to special interrogatory No. 14].)

Defendant’s motion ignores all of the foregoing, which clearly sets this case apart from the authorities that defendant attempts to rely on, where the coach’s safety training and qualifications were not at issue. (See, e.g., Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112, 1119.)

Coaching and teaching acrobatic cheerleading to students without the requisite safety and concussion training is “ ‘totally outside the range of the ordinary activity’ involved in ... coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 996.) California law emphasizes the importance of training school coaches in basic safety and “first aid, including, but not limited to, a basic understanding of the signs and symptoms of concussions ... and the appropriate response to concussions” (Ed. Code, § 35179.1, subd. (c)(6) [eff. Jan. 1, 2019 to Dec. 31, 2023]), and the California State Board of Education has promulgated statewide regulations establishing minimum qualifications with respect to such training for athletic coaches in schools. (See Cal. Code Regs., tit. 5, § 5593, subds. (a)(1)-(2), (b)(1)-(2); see also id., §§ 5591, 5592; Ed. Code, § 35179.1, subd.

(b)(5) [version eff. Jan. 1, 2019 to Dec. 31, 2023, referencing the “current coaching regulations contained in Title 5 of the California Code of Regulations, including basic safety ... requirements”].) As discussed, defendant admits Egge did not meet these qualifications the day of the incident and should not have been coaching at that time. (See Angeloff Decl. ¶¶ 3-4, Ex. 1 [defendant’s responses to RFA Nos. 10-12], Ex. 2 [defendant’s response to special interrogatory No. 14].)

Furthermore, the Education Code affirmatively requires any district or school to immediately remove an athlete suspected of sustaining a concussion from the activity for the remainder of the day, and prohibits them from allowing the athlete to return to the activity until she is cleared by a licensed health care provider. (Ed. Code., § 49475, subd. (a)(1).) And the complaint alleges Egge did the opposite. (See Compl. ¶ 19.)

Where “a coach [knows] [the student] ha[s] been hit in the head, ha[s] time to evaluate her, and kn[ows] or should have known that returning her to play ha[s] the potential of significantly exacerbating her injury” but does so anyway (Mayall v. USA Water Polo, Inc. (9th Cir. 2018) 909 F.3d 1055, 1063), “the doctrine of assumption of the risk d[oes] not apply because the [coach] [has] actually increased the risk of injury beyond that inherent in the sport.” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1440; Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746; see also Ford v. Gouin (1992) 3 Cal.4th 339, 346-350 [preliminary assumption of the risk also does not apply where a statute exists to protect persons in a class of which plaintiff is a member from the specific conduct in which defendant engaged]; Evid. Code, § 669 [negligence per se].)

As such, bifurcating the issue of “liability via the primary assumption of the risk doctrine” from causation and damages is unwarranted. Defendant had a duty not to increase the risks inherent in learning the sport and essentially admits it breached this duty, and the extent of defendant’s duty and breach will depend in part on plaintiff’s alleged injuries in any event (e.g., if plaintiff was already concussed after the first or second fall). (See Sharufa v. Festival Fun Parks, LLC (2020) 49 Cal.App.5th 493, 498 [though separate elements, the questions of duty and breach are intertwined; whether a defendant’s conduct amounts to a breach will depend on the nature/extent of the duty owed].)

Defendant shall give notice.