Kahn

This case presents a question concerning the proper application of the doctrine of primary assumption of risk. At the time of her injury, plaintiff was a 14-year-old novice member of defendant school district’s junior varsity swim team. She was participating in a competitive swim meet when she executed a practice dive into a shallow racing pool that was located on defendant school district’s property and broke her neck. She alleged that the injury was caused in part by the failure of her coach, a district employee, to provide her with any instruction in how to safely dive into a shallow racing pool. She also alleged lack of adequate supervision and further that the coach breached the duty of care owed to her by insisting that she dive at the swim meet despite her objections, her lack of expertise, her fear of diving, and the coach’s previous promise to exempt her from diving.

In Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight), we considered the proper duty of care that should govern the liability of a sports participant for an injury to a coparticipant. We concluded that, in recognition of the circumstance that some risk of injury is…

Instructors and coaches of active sports must, as an essential part of their jobs, encourage and direct students to learn new and more difficult maneuvers and to perform already learned skills in more stringent competitive circumstances, a learning process that carries inherent risks of physical injury. In learning active sports and in athletic competition the risk of injury is ever present; instructors must frequently exercise their individual, subjective judgment in deciding'whether a student is ready to attempt a more dangerous skill or to face tougher competition; and when an injury occurs, especially an injury to a young person, the jury may be tempted to “second-guess [the] instructor’s assessment” (Kane v. National Ski Patrol System, Inc. (2001) 88 Cal.App.4th 204, 214 [ 105 Cal.Rptr.2d 600 ]). For these reasons, I agree with the majority that application of ordinary negligence standards to sports instruction threatens to severely chill both institutions’ maintenance of, and individual teachers’ participation in, such instructional programs.

I therefore agree with the majority that an instructor should be liable for a student’s injury in the course of learning a sport only…

More than a decade ago in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 ] (Ford) a plurality of three justices of this seven-member court concluded that participants in active sports have no duty to act with the ordinary care expected of a reasonable person to prevent injury to coparticipants. I disagreed with that position in Knight and Ford (Knight, supra, at pp. 324-338 (dis. opn. of Kennard, J.); Ford, supra, at pp. 351-364 (conc. opn. of Kennard, J.), and have continued to do so (see Cheong v. Antablin (1997) 16 Cal.4th 1063, 1075 [ 68 Cal.Rptr.2d 859 , 946 P.2d 817 ] (conc. opn. of Kennard, J.) [decrying the “no duty” approach as “tearing at the fabric of tort law”]). In this case, the majority extends the no duty rule to a coach of a high school athletic team, concluding that the coach’s alleged failure to train and supervise a young student athlete to dive into a shallow pool, resulting in her serious injury, is of no legal consequence. In the majority’s view, a coach of teenage athletes need have little concern for their physical safety.

I disagree. I would hold…

This case presents a question concerning the proper application of the doctrine of primary assumption of risk. At the time of her injury, plaintiff was a 14-year-old novice member of defendant school district's junior varsity swim team. She was participating in a competitive swim meet when she executed a practice dive into a shallow racing pool that was located on defendant school district's property and broke her neck. She alleged that the injury was caused in part by the failure of her coach, a district employee, to provide her with any instruction in how to safely dive into a shallow racing pool. She also alleged lack of adequate supervision and further that the coach breached the duty of care owed to her by insisting that she dive at the swim meet despite her objections, her lack of expertise, her fear of diving, and the coach's previous promise to exempt her from diving.

In Knight v. Jewett (1992) 3 Cal.4th 296 , 11 Cal.Rptr.2d 2 , 834 P.2d 696 ( Knight ), we considered the proper duty of care that should govern the liability of a sports participant for an injury to a coparticipant. We concluded that, in recognition of the circumstance that some risk of injury…