Filed 3/6/18 Aspinall v. Murietta Valley Unified School Dist. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA



WILLIAM CASEY ASPINALL, a Minor, etc.,

Plaintiff and Appellant,

v.

MURRIETA VALLEY UNIFIED SCHOOL DISTRICT et al.,

Defendants and Appellants.
D072847



(Super. Ct. No. RIC1119239)


APPEALS from a judgment and order of the Superior Court of Riverside County, John Molloy, Judge. Affirmed.
Esner, Chang & Boyer, Stuart B. Esner, Holly N. Boyer, Shea S. Murphy, Joseph S. Persoff; Greene, Broillet & Wheeler, Browne Greene; Balaban & Spielberger, Daniel K. Balaban and Andrew J. Spielberger, for Plaintiff and Appellant William Casey Aspinall, a Minor etc.
Declues Burkett & Thompson, Jeffrey A. Smith and Steven J. Lowery, for Defendants and Appellants Murrieta Valley Unified School District et al.
I
INTRODUCTION
William Casey Aspinall appeals from a judgment following a jury verdict in favor of Erik Even Daarstad and the Murrieta Valley Unified School District (District; collectively, the District defendants) on Aspinall's claims for negligence and negligent supervision. Aspinall suffered a severe concussion when he and a classmate collided while attempting to intercept a football during a drill in a football physical education (P.E.) class. Although the jury found the District defendants were negligent and had acted recklessly, the jury also found the District's defendants' actions were not a substantial factor in causing harm to Aspinall.
Aspinall contends the court prejudicially erred by misapplying the primary assumption of the risk doctrine (see Knight v. Jewett (1992) 3 Cal.4th 296, 308) and excluding key expert evidence that would have established the District defendants' actions caused his harm. He also contends the court erred by failing to instruct the jury on his unfitness to participate theory of negligence. Finally, he contends the court erred by failing to submit his negligent supervision theory of negligence to the jury.
We conclude Aspinall forfeited his challenge to the exclusion of the expert evidence and, even if he had not forfeited the challenge, the court properly applied the primary assumption of the risk doctrine and did not abuse its discretion in excluding the evidence. We further conclude there was not substantial evidence to warrant either instructing the jury on his unfitness to participate theory of negligence or submitting his negligent supervision theory of negligence to the jury. Given these conclusions, we need not decide whether the court's actions resulted in a miscarriage of justice.
The District defendants cross-appeal, contending the court erred by failing to grant their motion for nonsuit. We conclude the District defendants forfeited this contention by withdrawing their motion without obtaining a ruling on it. Accordingly, we affirm the judgment and order.
II
BACKGROUND
A
Football P.E. was an extension of the high school's football program. The District's policy required football players to participate in football P.E. class during the off-season, which began within a week of the collision. If a player dropped out of football P.E. class, the player would receive an F grade for athletics.
At the time of the collision, Aspinall was participating in a multi-day, seven-on-seven, touch-football drill tournament. The participants wore cleats and gloves, but not helmets or pads. The participants were supervised by Daarstad, a social studies teacher and the junior varsity football coach.
At the outset of the tournament, Daarstad instructed the participants not to engage in any physical play, to keep it two-hand touch, and to only go at half or quarter speed. Nonetheless, he knew the participants would be aggressive, competitive, and going full speed. He also knew there would be an opportunity for the participants to collide and get hurt.
Over the course of the tournament, the games became "brutal" and "very physical." As the sole supervisor for 60 to 65 participants, Daarstad was unable to control the situation. The games got "out of hand" because the participants were trying to impress Daarstad in order to make the varsity team for the playoffs. There was heavy contact. Participants were tackling, fighting, trash-talking, and "getting hurt left and right." Nonetheless, Aspinall did not see any tackling during the drill in which the collision occurred and he acknowledged the collision was accidental, not intentional.
After the collision, Aspinall fell to the ground. He was unconscious and bleeding from a one and a half-inch cut in the outer area of his left eye. According to him, when he woke up, he saw a group of his classmates around him. Everything was spinning and he could not hear anything. Daarstad rushed through the group and said something to him, but Aspinall could not comprehend what Daarstad was saying. Daarstad left and ran toward the school.
Aspinall tried to stand up, but everything was spinning. He fell back down to his knees and vomited. After waiting almost 10 minutes for help, he became concerned about the volume of blood dripping all over him. He felt terrified, anxious, abandoned, and embarrassed. He got up and started staggering toward the school to find help. He flagged down a security team member in a security cart. When the security team member asked him what was wrong, he was incoherent. The security team member placed him in the bed of the security cart and took him to the nurse's office.
According to Aspinall's classmates, Daarstad was not nearby when the collision occurred. They had to get Daarstad and tell him Aspinall was hurt. Daarstad ran over, hovered over Aspinall for some period of time, and then left. A security team member came by, Aspinall regained consciousness, and his classmates helped him up. Aspinall staggered around and walked off holding his head. He went to the locker room, got his stuff, and went to the nurse's office.
According to Daarstad, he saw Aspinall fall down, but did not see Aspinall unconscious. Aspinall was sitting up and awake when Daarstad reached him. Daarstad asked Aspinall some questions. Daarstad was not sure if Aspinall had a concussion, but he believed Aspinall was coherent and well enough to go to the nurse. Daarstad had a student flag down a security team member passing by in a security cart. Daarstad helped Aspinall into the cart and the security team member took Aspinall to the nurse's office. Daarstad did not prepare a report of the incident.
Aspinall was out of school for months after the collision. He continues to suffer from migraines and postconcussion narcolepsy. He also has memory and concentration problems.
Every year students are required to undergo a preparticipation physical examination and be cleared by a doctor to play sports. Aspinall had previously suffered concussions and concussion-related symptoms; however, he was cleared to participate in supervised athletic activities both the year in which the collision occurred and the prior year. According to Aspinall's deposition testimony, he had completely recovered from the prior concussions before the collision. Daarstad had not reviewed Aspinall's physical exam information and did not know about the prior concussions before allowing Aspinall to participate in the tournament.
B
Aspinall sued the District defendants for negligence and negligent supervision. The District defendants answered the complaint and asserted primary assumption of the risk as an affirmative defense. Based on this defense, the District defendants filed multiple motions in limine to exclude expert testimony, which the court largely granted. Eight of the motions, numbered (No.) 1, 3–5 and 12–15, appear to be at issue in this appeal.
In motion No. 1, the District defendants sought to exclude opinions from Aspinall's P.E. and sports safety expert (safety expert) that (1) Daarstad improperly failed to prevent the collision, (2) the participant who collided with Aspinall was not properly taught because he left his area of responsibility to intercept the ball, (3) Daarstad failed to provide instruction on attempting to intercept a football without protective gear, (4) Daarstad failed to properly supervise the participants knowing they would be playing all out and at top speed, and (5) the participants should not have been running so fast or playing so hard. The District defendants sought exclusion of the evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked foundation.
In motion No. 3, the District defendants sought to exclude opinions from Aspinall's safety expert that (1) the District failed to conduct the football P.E. class in accordance with a professionally designed P.E. curriculum, (2) the District failed to ensure the football P.E. class was not simply a football practice for the junior varsity football team, (3) the District improperly allowed the football P.E. class to be used as part of the junior varsity football team practice, (4) the District failed to monitor the football P.E. class to ensure it provided proactive and dynamic instruction, and (5) the District failed to properly supervise Daarstad by allowing a P.E. class to involve football only. The District defendants sought to exclude this evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked relevance.
In motion No. 4, the District defendants sought to exclude opinions from Aspinall's safety expert and his P.E. and coaching expert (coaching expert) that the District defendants failed to provide appropriate protective gear for the football P.E. class participants. The District defendants sought to exclude this evidence for lacking foundation, lacking relevance, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged opinions lacked foundation and impliedly on the ground the challenged opinions lacked relevance.
In motion No. 5, the District defendants sought to exclude evidence of the teacher-student ratio in the football P.E. class. The District defendants sought to exclude this evidence for lacking relevance and for being more prejudicial than probative under Evidence Code section 352. The court granted the motion, impliedly on the ground the challenged evidence lacked relevance.
In motion No. 12, the District defendants sought to exclude opinions from Aspinall's coaching expert and related evidence that (1) the District improperly assigned Daarstad to the football P.E. class because Daarstad did not possess a P.E. teaching credential, (2) the District defendants improperly failed to have a syllabus for the football P.E. class, (3) the District improperly failed to evaluate Daarstad, (4) the District improperly failed to train Daarstad on safety rules and guidelines, (5) the District improperly failed to prepare an incident report, (6) the District improperly gave credit for the football P.E. class even though the class did not meet state requirements, and (7) the District improperly required students to enroll in the football P.E. class as a condition of joining the football team. The District defendants sought to exclude this evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion on the ground the challenged evidence lacked relevance.
In motion No. 13, the District defendants sought to exclude all evidence regarding the state of mind of Aspinall and the classmate with whom he collided as well as opinions from Aspinall's coaching expert that (1) the classmate who collided with Aspinall did so aggressively, and (2) Aspinall and the classmate collided while they were both going after the football aggressively. The District defendants sought exclusion of the state of mind evidence for lacking relevance and being more prejudicial than probative under Evidence Code section 352. The District defendants sought exclusion of the expert evidence for lacking foundation, being improper subjects for expert opinion, and being more probative than prejudicial under Evidence Code section 352. The court granted the motion as to the expert evidence, finding expert testimony on this subject was unnecessary as Aspinall would be allowed to present percipient witness testimony describing the nature of the collision.
In motion No. 14, the District defendants sought to exclude opinions from Aspinall's coaching expert that (1) the District defendants should have provided a "cooling off" period after the regular football season before allowing the students to participate in a football P.E. class; (2) the District defendants should not have allowed the students to wear spirit gear, cleats, and gloves because doing so sent a message it was okay for them to be aggressive; (3) the District defendants should not have allowed the students to play touch football as competitively as they were; and (4) the District defendants should not have organized a tournament in which the goal was to win without providing proper safety equipment. The District defendants sought to exclude this evidence for lacking relevance, lacking foundation, being beyond the scope of the complaint, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion as to the expert opinion testimony, impliedly on the ground it lacked relevance. The court deferred ruling on the relevance of the percipient witness testimony underlying the expert's opinions.
In motion No. 15, the District defendants sought to exclude opinions from Aspinall's coaching expert that (1) Daarstad improperly allowed the participants to play at full speed; (2) a seven-on-seven drill is an improper activity for a P.E. class; (3) Daarstad improperly allowed participants to be responsible for adhering to the rules; (4) Daarstad improperly failed to monitor the participants' behavior; (5) Daarstad failed to reprimand participants for violating the rules on the day of the collision; (6) Daarstad failed to properly supervise the drill in which Aspinall participated, raising the likelihood participants would break the rules and be injured; and (7) Daarstad should have used flags or ruled that the ball was dead upon a catch since the participants were not using protective gear. The District defendants sought to exclude this evidence for lacking relevance, lacking foundation, being beyond the expert's expertise, being improper subjects for expert opinion, and being more prejudicial than probative under Evidence Code section 352. The court granted the motion, impliedly on the ground it lacked relevance.
C
The parties agreed to bifurcate the liability and damages phases of the trial. Aspinall proceeded to trial on the liability phase without expert witness testimony. He relied on three theories of liability. The first theory was that the District defendants acted recklessly and unreasonably increased the risk of harm by organizing the tournament immediately after the end of the football season, by not providing the participants with helmets or shoulder pads, by providing the participants with cleats, and by providing the participants with an incentive to show off for the coaches. The second theory was that the District defendants acted negligently by allowing Aspinall to participate in the tournament despite a preexisting history of concussions. The third theory was that the District defendants had negligently caused Aspinall emotional distress by failing to provide him with proper treatment after the collision.
Following the initial close of evidence, the District defendants moved for nonsuit. The court tentatively granted the motion on all three theories. As to the first theory, the court found Aspinall had not established the causation element. As to the second theory, the court found Aspinall had not provided any evidence his doctors had not cleared him to play football. As to the third theory, the court found Aspinall had not established causation because there was no evidence Aspinall suffered greater harm due to a delay in treatment. After receiving the court's tentative ruling, Aspinall reopened his case and testified about the emotional harm he experienced after he regained consciousness and waited for someone to assist him.
The court subsequently instructed the jury on Aspinall's first and second theories—the District defendants recklessly created an environment that led to the collision and the District defendants' postcollision conduct caused Aspinall severe emotional distress. The court did not instruct the jury on Aspinall's third theory—the District defendants negligently allowed him to participate in the tournament despite his concussion history.
D
As to any injury suffered as a result of the collision, the jury found the District defendants acted recklessly, but their conduct was not a substantial factor in causing harm to Aspinall. As to any injury suffered by Aspinall after the collision, the jury rendered two verdicts. In one verdict, the jury found the District defendants were negligent, but their negligence was not a substantial factor in causing serious emotional distress to Aspinall. In the other verdict, the jury found Daarstad was not negligent.
E
After receiving the jury's verdicts, the court revisited the motion for nonsuit and reversed its tentative ruling as Aspinall's theory of negligent postcollision conduct. The court then asked how the parties wished to proceed on the motion. The District defendants withdrew the motion, expressly opting to stand on the jury's verdicts.
II
DISCUSSION
A
1
a
Aspinall contends we must reverse the judgment because the court prejudicially erred by excluding key expert testimony that would have established the District defendants' reckless conduct caused his head injury. We generally review a trial court ruling admitting or excluding expert testimony for abuse of discretion. However, if the trial court based the ruling on a conclusion of law, we review the ruling de novo. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 773.) A ruling constitutes an abuse of discretion if it is so irrational or arbitrary no reasonable person could agree with it or if it is outside the confines of applicable legal principles. (Ibid.; Phillips v. Honeywell Internat. Inc. (2017) 9 Cal.App.5th 1061, 1085.)
The motions in limine at issue in this appeal collectively encompass more than two dozen items of evidence, each of which was objected to on multiple grounds. If the court's rulings on the motions are correct on any of the asserted grounds, we must affirm them. "No rule of decision is better or more firmly established by authority, nor one resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329.)
Moreover, we must presume the court's rulings on the motions are correct unless Aspinall rebuts the presumption by affirmatively demonstrating error. (Denham v. Superior Court of Los Angeles County (1970) 2 Cal.3d 557, 564.) Thus, to meet his burden on appeal, Aspinall had to affirmatively demonstrate there was no merit to any of the asserted objections to each challenged item of evidence in each of the subject motions in limine.
Aspinall's opening brief does not meet this burden. Instead, his opening brief describes some of the excluded evidence and then baldly asserts, "There was no basis to exclude this key expert evidence." His opening brief does not indicate which motion in limine challenged which item of evidence, on what grounds the motion challenged the evidence, on what grounds the court excluded the evidence, and why the grounds for challenging the evidence lacked merit. Aspinall has, therefore, forfeited any claims of error related to the court's motion in limine rulings. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
b
To the extent Aspinall challenges the court's exclusion of expert evidence for lack of relevance based on the primary assumption of the risk doctrine, Aspinall has not persuaded us the court erred in its application of the doctrine. "Generally, each person has a duty to exercise reasonable care in the circumstances and is liable to those injured by the failure to do so. [Citation.] By statute, the Legislature has extended this common law standard of tort liability to public employees [citations] and has extended liability for public employees' negligent acts to public entity defendants [citations]." (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 160 (Avila).)
Nonetheless, " '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.' [Citation.] The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect." (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)
"Primary assumption of the risk applies when the court, 'after examining the nature of the particular activity and the parties' relationship to that activity, concludes that a plaintiff engaged in the particular activity is harmed by the risks inherent in the activity.' [Citation.] When the risks are inherent, the defendant does not have a 'duty to protect the plaintiff from those risks [citation] or to take steps to reduce those risks.' " (Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1058 (Fazio).)
"The doctrine of primary assumption of the risk, however, 'does not grant unbridled legal immunity to all defendants.' [Citation.] '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.' " (Fazio, supra, 233 Cal.App.4th at p. 1059.)
No matter the level of play, whether touch or tackle, an accidental collision between players vying for possession of a passed football is an inherent risk in the game of football. (Avila, supra, 38 Cal.4th at p. 163; Fortier, supra, 45 Cal.App.4th at p. 437.) Thus, whether the doctrine of primary assumption of the risk bars Aspinall's recovery against the District defendants depends on whether the District defendants either (1) engaged in intentional or reckless conduct, or (2) did something to increase the risk of an accidental collision. (Foltz v. Johnson (2017) 16 Cal.App.5th 647, 654–655; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 996.)
As Aspinall does not contend the District defendants intentionally harmed him, the expert evidence at issue in this case focused on whether the District defendants engaged in reckless conduct or did something to increase the risk of an accidental collision. The court excluded some of this evidence because the evidence lacked foundation and the jury did not need expert opinion on the subject. Aspinall does not dispute the court's reasoning and the jury's verdicts support its correctness. After hearing only percipient witness testimony about the circumstances of how the collision occurred, the jury agreed with Aspinall that the District defendants had engaged in reckless conduct.
The court excluded the remainder of the expert evidence because the evidence lacked relevance in light of the primary assumption of the risk doctrine. Specifically, the court found the evidence tended to show there were steps the District defendants could and should have taken to decrease the risk of an accidental collision, but the evidence did not tend to show the District defendants did anything to increase the risk of an accidental collision.
On the underlying legal point, the court was correct. Under the primary assumption of the risk doctrine, the District defendants owed a duty to Aspinall not to increase the risk of an accidental collision. However, the District defendants did not owe him a duty to decrease the risk of one. (Nalwa, supra, 55 Cal.4th at p. 1162; Avila, supra, 38 Cal.4th at p. 166; Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1438; Aaris v. Las Virgenes Unified School District (1998) 64 Cal.App.4th 1112, 1120; Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 52.) Consequently, expert opinions regarding actions the District defendants could and should have taken to decrease the risk of an accidental collision were not relevant.
On the court's application of the underlying legal point to the proffered expert opinions, the court allowed Aspinall's counsel to argue extensively. However, Aspinall's counsel was unable to persuasively articulate how the timing and structure of the tournament; the level and speed of play; the lack of thorough instruction; the lack of additional supervision; the use of cleats, gloves, and spirit wear; or the lack of helmets increased the risk that two players on the same side would go after the same passed football and accidentally collide.
Moreover, a closely analogous appellate court decision, also involving an injury from an accidental collision during a seven-on-seven drill, considered and rejected the same types of arguments reflected in the proffered expert opinions. (Fortier, supra, 45 Cal.App.4th at p. 432.) As to any encouragement of the class participants to be aggressive during the drill, the decision reasoned, "To encourage aggressive play in football is simply to encourage the participants to play the game as it should be played. Football is a sport which is characterized by aggressive play. Wide receivers run pass patterns and attempt to catch footballs passed to them. Defensive backs react, attempting to cover the receivers and knock down or intercept the passes intended for the receivers. Neither the game of football nor the particular exercise in which plaintiff was injured, which is an integral part of the game, can be authentically performed if the participants are not carrying out their respective roles aggressively." (Id. at pp. 436–437.)
As to ensuring a particular level of contact, the court reasoned, "Whether in the seven-on-seven drill, or even a game such as touch or flag football, 'non-contact' means no tackling. It is not and in the nature of the sport cannot be a guarantee of absolutely no contact." (Fortier, supra, 45 Cal.App.4th at pp. 437–438.) A certain amount of contact, whether incidental or deliberate, is part of the drill. (Id. at p. 438.)
As to the use of a helmet, the court assumed a helmet would have protected the plaintiff from the type of injuries he suffered. However, the court concluded, as a matter of commonsense, the use of helmets, particularly if used without the complete array of protective gear, could have created as many risks as interdicted. (Fortier, supra, 45 Cal.App.4th at pp. 438–439.) Consequently, the court concluded the failure to use helmets in a football practice drill involving no tackling or intentional aggressive contact did not increase the risks inherent in the drill. (Id. at p. 439.)
The court further explained, "[W]ere we to hold defendants liable for failure to provide helmets, the effect would be to alter fundamentally the nature of the recreational sport of football as played and enjoyed by thousands. The seven-on-seven drill is akin to one-hand or two-hand touch, or flag football, all of which are variations of the sport in which tackling or aggressive, intentional contact is not permitted. There is in fact little difference between the drill in which plaintiff was participating and a supervised game of touch or flag football engaged in by students in the schoolyard or on the playground. Typically, participants in such games do not wear helmets or, for that matter, other protective equipment. To impose the duty to provide such equipment on schools and other supervisors and organizers of such sport in order to avoid liability for injuries inherent in the rough and tumble of such activity would have enormous social and economic consequences. [Citation.] The opportunities to participate in organized, recreational football would be significantly diminished." (Fortier, supra, 45 Cal.App.4th at p. 439.)
We are persuaded by the Fortier court's reasoning. Applying the reasoning in this case, we conclude the court did not abuse its discretion in excluding the proffered expert opinions for lack of relevance.
2
Aspinall next contends we must reverse the judgment because the court declined to instruct the jury on his unfitness to participate theory of negligence. "A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence." (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) "We independently review claims of instructional error viewing the evidence in the light most favorable to the appellant." (Orichian v. BMW of North America, LLC (2014) 226 Cal.App.4th 1322, 1333; accord, Yale v. Bowne (2017) 9 Cal.App.5th 649, 657.)
Aspinall derives his unfitness to participate theory from Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746 (Wattenbarger). The Wattenbarger case holds a coach has a duty of ordinary care not to increase the risk of injury to a player by encouraging or allowing the player to participate in a sport if the player is physically unfit to do so. (Id. at p. 756; Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845.)
The evidence adduced at trial in this case included the preparticipation physical examination forms for the year of and the year preceding the collision. The forms indicated Aspinall had previously experienced concussions and concussion-related symptoms. However, the forms also indicated "on the basis of the examination requested by the school authorities and the student's medical history as furnished to [the examining doctor,]" the examining doctor "found no reason which would make it medically inadvisable for this student to compete in supervised athletic activities."
Although the high school's athletic director testified in response to a hypothetical question that he personally would not have allowed, or advised Daarstad to allow, a student with a prior concussion history and ongoing concussion symptoms to participate in an activity like the seven-on-seven drill tournament, this testimony does not support Aspinall's unfitness to participate theory. The athletic director was not a medical professional and he did not oversee the football P.E. class. More importantly, Aspinall testified, on the day of the collision, he wanted to participate in the tournament and he did not feel there was any reason he could not participate in it. He also admitted in his deposition he had completely recovered from his prior concussions before he participated in the tournament. Accordingly, there was not substantial evidence Aspinall was unfit to participate in the drill on the day of the collision and the court did not err by failing to instruct the jury on the unfitness to participate theory.
3
Lastly, Aspinall contends we must reverse the judgment because the court declined to submit his negligent supervision theory of negligence to the jury. Assuming, without deciding, Aspinall properly preserved this contention for appeal, we review it under the same standards discussed in the preceding part.
Aspinall derives his negligent supervision theory from Jimenez v. Roseville City School District (2016) 247 Cal.App.4th 594 (Jimenez). In Jimenez, a middle school student severely injured himself attempting a flip while practicing break dancing with other students in an unsupervised classroom. (Id. at p. 597.) At issue in the case was whether the school district could be held liable for the student's injury because one of its teachers broke school rules by allowing the students to engage in a potentially risky activity in an unsupervised classroom and at least one school administrator knew or should have known the students were performing flips. (Id. at pp. 601–602.) The court concluded the school district had an ordinary duty of care to supervise the students because they were engaged in potentially dangerous activity. (Id. at p. 601.)
In reaching this conclusion, the court determined the doctrine of primary assumption of the risk did not apply to bar the school district's liability because the conduct at issue—allowing children to congregate in unsupervised classrooms to engage in risky activity—was conduct that should be chilled. (Jimenez, supra, 247 Cal.App.4th at p. 605; cf. Nalwa, supra, 55 Cal.4th at pp. 1156–1157 [policy foundation for the primary assumption of the risk doctrine is to avoid chilling vigorous participation in or sponsorship of recreational activities and the boundaries of the doctrine should be drawn according to that goal].) Moreover, the court expressly distinguished the conduct from cases involving students participating in sports activities supervised by an experienced coach, to which the court affirmed the doctrine of primary assumption of the risk did apply. (Jimenez, at pp. 606–607; see Aaris v. Las Virgenes Unified School District, supra, 64 Cal.App.4th at pp. 1117–1118 [a school's statutory duty to supervise students does not override the doctrine of primary assumption of risk where a student is injured participating in an athletic activity under the supervision of an experienced coach].)
As the instant case involves an injury to a student participating in a sports activity supervised by an experienced coach, the negligent supervision theory reflected in the Jimenez decision is inapplicable. Accordingly, Aspinall has not established the court erred by failing to submit this theory of negligence to the jury.
B
The District defendants contend the court erred by failing to grant their motion for nonsuit. However, we need not decide this contention as the District defendants forfeited it by withdrawing their motion after the jury returned its verdicts in the District defendants' favor. (See People v. Lewis (2001) 26 Cal.4th 334, 375 [no appellate challenge in the absence of an adverse ruling]); People v. McPeters (1992) 2 Cal.4th 1148, 1179 [same], superseded by statute on another point as recognized by People v. Boyce (2014) 59 Cal.4th 672, 707.)
IV
DISPOSITION
The judgment and order are affirmed. The District defendants are awarded their costs for the appeal. The parties are to bear their own costs for the cross-appeal.



McCONNELL, P. J.

WE CONCUR:



O'ROURKE, J.



DATO, J.