Grisham v. Porter

Filed 5/22/06 Grisham v. Porter CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Appeal from a judgment of the Superior Court of Los Angeles County, Brian F. Gasdia, Judge. Affirmed.

Pierce & Pierce, LLP, B. Gene Pierce, Jr. for Plaintiff and Appellant Kaylee Grisham.

Horvitz & Levy, LLP, Barry R. Levy, Patricia Lofton; Early, Maslach & Rudnicki, James Grafton Randall and Terry L. Gimenez for Defendant and Respondent Devin Porter.

INTRODUCTION

During a high school softball game, plaintiff and appellant Kaylee Grisham (plaintiff) was standing inside the dugout leaning on the rail. Defendant and respondent Devin Porter (defendant), while taking practice batting swings in the on-deck area, accidentally struck plaintiff in the face with the bat. Plaintiff sued defendant for negligence. Plaintiff appeals from the judgment of the trial court entered after its order granting defendant's summary judgment motion. The trial court ruled that defendant was entitled to judgment as a matter of law because plaintiff's negligence cause of action was barred under the doctrine of primary assumption of the risk.

On appeal, plaintiff contends that the primary assumption of risk doctrine did not apply because defendant's conduct, swinging a bat near the dugout, was not an inherent risk of participation in the sport of softball, increased the risks inherent in participation in that sport, and was reckless.

We hold that defendant's conduct was a risk inherent in participation in the sport of softball and was not reckless. Thus, we apply the primary assumption of risk doctrine in this case and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident

On March 26, 2003, plaintiff and defendant were students at Lakewood High School and members of the varsity softball team. On that day, they were participants in a softball game on their home field. At the time of the incident in question, the Lakewood High team was at bat in the first inning and the second batter was up.

Defendant, who was next to bat, was warming up in an area adjacent to the low chain-link fence of the Lakewood High dugout. Defendant and certain witnesses contend she was standing in an area normally used as an on-deck circle. Plaintiff and other witnesses contend that defendant was not standing in the normal on-deck circle, which they contend was usually closer to home plate. Both sides agree that the on-deck circle was not delineated by chalk or paint on the day in question.

The coach required all members of the team to stand in the dugout against the fence when their team was at bat.^[1] At the time of the incident, plaintiff contends she was learning against the dugout rail.

Defendant contends she had â€