Marshall v. USC

Filed 2/28/07 Marshall v. USC CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Jean E. Matusinka, Judge. Affirmed.

Law Offices of Nardi & Kallberg, Candace E. Kallberg and Denise A. Nardi; University of Southern California and Kelly J. Bendell for Defendant and Respondent.

Law Offices of Thomas OHagan and Howard P. Brody for Pediatric Therapy Network, Cross-Defendant and Respondent.

Stolpman, Krissman, Elber & Silver, Donna Silver and Thomas G. Stolpman for Plaintiff and Appellant.

INTRODUCTION

In her action for damages for personal injuries she sustained while providing occupational therapy during the clinical portion of her post-graduate course, plaintiff Jennifer Marshall appeals from the summary judgment entered in favor of defendant, the University of Southern California (USC). Plaintiffs duties as an occupational therapist included helping young, active children climb, swing, and glide on gym equipment. Plaintiffs training at USC in sensory integration therapy enabled her to perform these activities. Inherent in her profession was the risk that a child would jump or fall from such equipment and injure someone. We conclude, as a matter of law, that plaintiff assumed the risk of her injuries by participating in the clinical portion of her occupational therapy course, and no triable issue of material fact exists that USC did not increase the risk of harm to plaintiff. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are undisputed. After receiving her masters degree in occupational therapy from USC, and taking her certification examination,[1] plaintiff started working for Pediatric Therapy Network (PTN) as an occupational therapist. PTN is a nonprofit organization that provides occupational, physical, and speech therapy to the south bay community. As an employee of PTN, plaintiff visited schools to work with children there. To work in PTNs on-site clinic, PTN required its therapists first to complete USCs course number 610, that covers sensory integration theory and treatment.

Plaintiff enrolled in OT 610 in the summer of 2002. There she learned about the different sensory systems. In addition to sight, sound, and hearing, humans also have vestibular and proprioceptive senses. The vestibular sense relates to the ear canals, that [tell a person about] space and movement. In OT 610, plaintiff was learning how to provide therapy for children with sensory integration dysfunction. The purpose of occupational therapy is to help those with problems in certain sensory areas to use sensation for practical purposes. In the entry-level program she took to become an occupational therapist, plaintiff received training to prevent herself from being hurt. USCs Diane Parham, Ph.D., who runs OT 610, explained that safety issues are discussed in the beginning of the course as the issues are of primary importance. PTN spends some time in the gym reviewing with the students the supplies and some of the equipment that are found there. PTN showed plaintiff the different types of swings used in the clinics and informed her how to hang them.

As part of the clinical portion of her OT 610 course, PTN assigned plaintiff to work with four-year‑old Jason, an autistic child. According to plaintiff, Jason sought a lot of vestibular input. He sought movement, such as spinning or gliding. He loved swinging and climbing.

Typical of autistic children, plaintiff remembered that Jason was in his own world and distracted that day in August 2002. He was talking to cartoon characters. Jason ran into the ball pit and up a rope ladder that was suspended over the ball pit. The ball pit is designed to break a childs fall. Plaintiff testified that the therapist must always be positioned within arms reach. She knew from OT 610 that when children use the rope ladder, she could stand next to them just outside of the ball pit, or inside the ball pit, so long as she was within arms reach of the child. Plaintiff stood on the pits ledge and reached up, intending to help Jason plan how to make his way down the rope. Before plaintiff had a chance to speak to him, Jason jumped. He landed on plaintiffs left shoulder which twisted to the right. She grabbed the rope ladder and Jason crawled off her and ran away.

The accident occurred toward the end of the course, by which time plaintiff usually did not ask for supervision or have questions for her supervisors. After the accident, plaintiff found her supervisor, PTNs Stephanie Bodison, the coordinator for OT 610. She began treating her next client, but suffering too much pain, she was unable to complete the session.

Plaintiff filed her complaint against USC and PTN seeking damages for her personal injuries. Cast in one cause of action for negligence, the complaint alleged that defendants failed to provide proper and adequate training, guidance, instruction, or assistance to students enrolled in OT 610. She alleged that defendants failed to provide physical assistance and failed to properly supervise physically demanding children receiving therapy. Plaintiffs injuries were the proximate result of defendants acts and failures. Plaintiff received workers compensation through PTN. In October 2004, plaintiff dismissed PTN from the case.

USC answered the complaint by denying the allegations and setting forth, among the 12 affirmative defenses, the defense of assumption of risk. Thereafter, USC moved for summary judgment on the ground, inter alia, that the evidence was undisputed with the result that as a matter of law, plaintiffs claim against USC was barred by the doctrine of primary assumption of risk because plaintiffs injuries were caused by a risk inherent in the activities in which she was engaged.

Plaintiff opposed USCs summary judgment motion on several grounds. Of relevance here, she argued that the doctrine of primary assumption of risk did not apply.[2]

The trial court granted USCs motion. It ruled that there was no dispute that plaintiff had received workers compensation benefits with the result that the case was barred by the holdings of Privette v. Superior Court (1993) 5 Cal.4th 689 and its progeny.[3] The court observed that PTN was not a party to this action, and plaintiff received workers compensation benefits for her injury. Among other things, the court found that plaintiff failed to demonstrate that USC -- as opposed to PTN -- caused any inadequate training or facilities. After entry of judgment, plaintiff filed her timely appeal.

CONTENTION

Plaintiff contends that the trial court erred in granting the summary judgment motion because USC failed to demonstrate its entitlement to that procedure and otherwise plaintiff has raised triable issues of material fact about her employment relationship with PTN and USCs legal duty.

DISCUSSION

1. Standard of review

Summary judgment is granted when a moving party establishes the absence of a triable issue of material fact and the right to entry of judgment as a matter of law. (Code Civ. Proc.,  437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)    We review the [superior] courts decision to grant . . . summary judgment de novo. [Citation.] [Citation.] [Citation.] (Nathanson v. Hecker (2002) 99 Cal.App.4th 1158, 1162.)

In moving for summary judgment, a defendant or cross-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, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc.,  437c, subd. (p)(2); see also, Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.) Once the moving party defendant meets its burden, the burden shifts to the plaintiff to show a triable issue of material fact exists as to that cause of action or defense. (Code Civ. Proc.,  437c, subd. (p)(2).) To meet that burden, the plaintiff shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or defense thereto. (Ibid.) Where the plaintiff fails to satisfy this burden, judgment in favor of the defendant shall be granted as a matter of law. [Citation.] (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014.) Although the trial court may grant summary judgment on one basis, this court may affirm the judgment under another. On appeal, this court examines the facts and independently determines their effect as a matter of law. [Citations.] It is not bound by the trial courts stated reasons, if any, supporting its ruling; it reviews the ruling, not the rationale. [Citation.] (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)

2. The law of primary assumption of the risk

 As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. [Citations.] There are, however, exceptions to this rule, based on statute or public policy. [Citation.] [] One of these exceptions is the doctrine of primary assumption of risk. It bars any recovery by a plaintiff when it can be established that, because of the nature of the activity involved and the parties relationship to the activity, the defendant owed the plaintiff no duty of care. [Citations.] The relationship of the parties to each other is also a consideration. [Citation.] (Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012, 1020-1021 (Hamilton), citing Knight v. Jewett (1992) 3 Cal.4th 296, 315 (Knight).)

 Under Knight inherent risk defines duty. (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1635.) Whether the doctrine of primary assumption of risk serves as a bar to a liability claim is a question of law, turning largely on objective factors. (Priebe v. Nelson (2006) 39 Cal.4th 1112, 1128.) Hence,  the applicability of that defense is amenable to resolution by summary judgment. [Citation.] When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiffs primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains. [Citation.] (Hamilton, supra, 110 Cal.App.4th at p. 1020.)

The doctrine of primary assumption of risk has been applied in connection with employment-related activities. In Hamilton, supra, an analogous case, the plaintiff was a probation corrections and peace officer with the San Bernardino County Probation Department. Her employment duties included restraining some violent juvenile offenders. As a condition of her employment, she was required to participate in an unarmed defensive tactics training course. She was injured when participating in that course. (Hamilton, supra, 110 Cal.App.4th at pp. 1016-1017.) The appellate court held that the defendant did not owe the plaintiff a duty of care because the plaintiff had assumed the risk of her injuries by participating in the course and there was no triable issue of material fact that the defendant did not increase the risk of harm to plaintiff in performing the training maneuver. (Id. at p. 1017.) The Hamiltoncourt reasoned that the injuries were an inherent risk of performing the training maneuver and the plaintiffs duties entailed the very risk of injury of which she complained. (Id. at p. 1023.) That is, the plaintiffs duties included restraining juvenile offenders and so by continuing in her job, the plaintiff assumed the risk that she would be injured by a violent juvenile offender. Likewise, by participating in the required training course, she assumed the risk that she would be injured while training to restrain a juvenile offender. (Ibid.) The Hamiltoncourt was not influenced by the fact that the plaintiff was not injured while restraining a violent juvenile offender, but while training to restrain a violent juvenile offender. At least one court has noted that a distinction between practice and competition in the sports context would make assumption of risk hinge upon the formality of the activity, not the activity itself. [Citation.] The same is true here. Training is essential to performance in the workplace, just as practice is essential to competition in the sports setting. (Ibid.)

In another similar employment-related case, Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, the plaintiff was a nurses aide employed at a convalescent hospital. In that capacity, she was regularly exposed to Alzheimers patients who could be combative and violent. She was injured when one of these patients struck her. (Id. at pp. 1763-1764.) The court in Herrle held that the plaintiff had assumed the risk of her injuries and that the patient did not owe the plaintiff a duty of care. The court reasoned that the plaintiff, by the very nature of her profession, placed herself in a position where she assumed the duty to take care of patients who were potentially violent and to protect such patients from committing acts which might injure others. The danger of violence to the plaintiff was rooted in the     very occasion for [plaintiffs] engagement. [Citations.]      (Id. at p. 1766.)

The doctrine of primary assumption of risk is also applied in cases involving student/instructor relationships. The determination of duty in those cases turns not on the labels given to the sporting participants, but instead on the facts surrounding their levels of experience and/or their relationships to one another in the activity resulting in the plaintiffs injury. [Citations.] (Regents of University of California v. Superior Court (1996) 41 Cal.App.4th 1040, 1046.) Also relevant is whether the defendant increased the risk inherent in the activity. (Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 533.)

Thus, in Bushnell v. Japanese-American Religious & Cultural Center, the plaintiff was injured during a judo class while working through a relatively simple maneuver with his instructor. To improve his skills, the plaintiff had to attempt the maneuver at ever increasing speed. Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the students abilities. (Bushnell v. Japanese-American Religious & Cultural Center, supra, 43 Cal.App.4th at p. 532.) Bushnell explained, we agree that liability might attach because the defendants thereby increased the risk inherent in the activity. (Id. at p. 533.) If, however, the court found that liability might attach because the defendants were negligent in asking the plaintiff to take on new challenges in order to improve her skills, we do not agree that liability might attach, at least in the absence of evidence that the instructor acted recklessly or with an intent to cause injury. (Id. at pp. 533-534.)

3. The doctrine of primary assumption of risk bars plaintiffs claim

Plaintiff assumed the risk of her injury. That is, with respect to plaintiffs injury, USC owed her no duty of care. (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 256.) The undisputed facts show that occupational therapy is concerned with the things people do every day. For children that means play. The children that occupational therapists work with often have difficulty focusing and may lack awareness of their body in space. Bodison explained that the children who undergo occupational therapy have a difficult time interacting with therapists [and] with children[,] and they often have a difficult time focusing in a particular environment that might have other people in it. That is why therapists must remain within arms length of the child. Inherent in the duties of an occupational therapist is the risk that a child will fall from a gym structure and land on a therapist, whose duties include spotting children and teaching them how to maneuver themselves on climbing, swinging, and gliding structures. Plaintiff herself testified that she knew children fall. Bodison testified that, with respect to equipment like the rope ladder, it is expected that the children might try to jump off. Parham testified in her deposition that children jumping or falling from climbing equipment is a known risk inherent in occupational therapy. This is especially true for occupational therapists who work with active young children. It is, thus, in the nature of occupational therapy sessions that children climbing on the rope ladder might jump or fall and land on their monitors or another person. As an occupational therapist, plaintiff took care of children who are inattentive, are at active play on climbing, sliding, and gliding equipment, and who could jump or fall. Therefore, the danger of harm from a falling or jumping child is one of the very danger[s plaintiff was] employed to confront. (Priebe v. Nelson, supra, 39 Cal.4th at p. 1122.)[4]

Plaintiff presented no evidence to suggest that such risk is out of the ordinary in occupational therapy. Plaintiffs duties included remaining within arms length of children to monitor them and help them maneuver down a climbing structure during their play, and so by the very nature of her job, plaintiff put herself in a position where she assumed responsibility to care for and monitor children who are young, active, and inattentive, and are moving their bodies through space, to prevent them from falling or jumping and injuring themselves or others. Hence, as in Herrle, plaintiff assumed the risk that she would be injured by a jumping or falling student. Taking the OT 610 course was part of plaintiffs job with PTN. Just as in Hamilton, plaintiff took the class so that she could perform her professional duties. By participating in the required OT 610, she assumed the risk that she would be injured while training to work with climbing, active, students with sensory integration dysfunction.

Plaintiff argues assumption of the risk is a complete defense only in the absence of a duty owed. However, with primary assumption of risk, the  doctrine embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. . . . Primary assumption of risk, when applicable, completely bars the plaintiffs recovery. [Citation.] The doctrine of secondary assumption of risk, by contrast, is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. [Citation.] Whether primary or secondary assumption of risk applies turns on whether, in light of the nature of the . . . activity in which defendant and plaintiff were engaged, defendants conduct breached a legal duty of care to plaintiff. [Citation.] The test is objective; it depends on the nature of the . . . activity in question and on the parties general relationship to the activity rather than the particular plaintiffs subjective knowledge and awareness . . . . [Citation.]  (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068, italics added.) Here, USC has demonstrated its entitlement as a matter of law to a complete defense, i.e., to primary assumption of the risk, in which case it owed her no legal duty. (Hamilton, supra, 110 Cal.App.4th at p. 1021.)

4. There is no dispute of fact that USC did not increase the risk

Plaintiff argues that USC increased the risk of harm. (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703.) Sanchez stated that A defendant owes no duty of care to protect a plaintiff against risks inherent in a particular sport voluntarily played by the plaintiff. But the defendant owes a duty to participants not to increase the risk of harm over and above that inherent in the sport. [Citations.] (Id. at p. 712, italics added.)

The undisputed evidence here shows that USC did not increase the risk already inherent in plaintiffs duties as an occupational therapist working with children with vestibular-related sensory dysfunction, who are inattentive and unaware of others. Safety awareness was part of the occupational therapists general training. Those skills are intended to be used in all of the environments where occupational therapists work and with all of the clients they treat. Sensory integration dysfunction is also something that occupational therapists would be familiar with before they took the OT 610 course because this subject is required by the national governing body and is included in all accredited occupational therapy programs. Plaintiff would not have been accepted into the class if she lacked the required experience. Even when not working at PTNs gym, plaintiffs duties as an occupational therapist involved spotting or monitoring children in a playground to climb, slide, and hang.

Plaintiff makes much of OT 610s course description as providing closely supervised hands-on clinical practice at PTN. She argues USC breached a duty it assumed to supervise her in the course. Yet, plaintiff does not create a dispute; her own testimony was that she really needed no supervision. Furthermore, she relies on shear speculation for the proposition that had a supervisor been closer, she would not have been injured. The evidence was undisputed she was given training in safety in the orientation part of the course. The equipment in PTNs clinic is not specific to OT 610 or to PTN. It is generally accessible. An occupational therapist will see the same kinds of equipment in a variety of settings. Hence, no special training was needed for the use of this equipment. More important, there is nothing out of the ordinary about the rope ladders that would require special supervision or training. (See Ferrari v. Grand Canyon Dories, supra, 32 Cal.App.4th at p. 256 [primary assumption of risk defense applied where white-water rafts were standard in industry].) Indeed, plaintiff had used a rope ladder between 10 and 20 times before the accident. The sensory integration therapy which plaintiff was providing to Jason at the time of the accident, and the equipment used, were something that as a certified occupational therapist, plaintiff was familiar with before she enrolled in the OT 610 course.

Next, plaintiff attempts to create a dispute of fact about whether USC increased the risk of injury because the physical conditions at the PTN clinic were not optimal. She posits that had there been a platform present for her to stand on, she would not have been obliged to prop herself up on the ball-pit ledge to remain within arms length of Jason. We have reviewed the facts she cites in support of this assertion. Apart from her citation to the Yaggie declaration, which is inadmissible because it is speculative (see fn. 2), the evidence she submitted does not support her asserted facts. More to the point, plaintiff testified in her deposition that to remain close to Jason, she could have stood in the ball pit or on the outside. It was her choice to prop herself on the ledge. Therefore, plaintiff failed to create a dispute that the conditions surrounding the rope ladder were no different than those that would be found in a playground. Working in a gym defines the nature of occupational therapy and the risk of injuries from falling or jumping children is intrinsic. Therefore, USC did not exceed the bounds of, or increase, the normal risks associated with this type of training and profession.

Although plaintiff sought to dispute nearly every single fact asserted by USC, she has not demonstrated a triable fact about the dispositive legal issue here, namely, primary assumption of risk. Plaintiff goes to great lengths to create a dispute about whether she was an employee of PTN or a tuition-paying student at the time of her injury. However, she cannot dispute that she received workers compensation benefits for her injury and dismissed PTN from her complaint. Hence, plaintiff is judicially estopped from attempting to claim she was not an employee of PTN. (Koo v. Rubios Restaurants, Inc. (2003) 109 Cal.App.4th 719, 735.) Her contention is unavailing that she has raised disputes of material facts about whether USC and PTN were joint venturers, whether an ostensible agency existed, whether USC hired an independent contractor, or whether USCs conduct caused her injuries. Summary judgment may not be defeated merely because there are disputed factual issues; if the defendants showing negates an essential element of the plaintiffs case, then no amount of factual conflict on other aspects of the case will preclude summary judgment. [Citation.] (Yurick v.Superior Court (1989) 209 Cal.App.3d 1116, 1120, fn. omitted.) Here, there being no dispute of material fact, USC demonstrated its entitlement to the complete defense of primary assumption of risk. Although the trial court did not rely on this basis, the doctrine was raised by the pleadings and in argument.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

KITCHING, J.

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[1] The National Board Certification in Occupational Therapy.

[2] USC did not dispute the majority of the additional facts presented by plaintiff. USC objected to the declaration of James Yaggie, submitted by plaintiff, on the ground, inter alia, Yaggies conclusions were speculative. The court agreed and so ruled.

[3]Tolandv. Sunland Housing Group, Inc. (1998) 18 Cal.4th 253.

[4] Plaintiff thus does not fully describe the nature of the risk as presented by the deposition testimony cited by USC, when she insists that the only inherent risk in the OT activities in which plaintiff was engaged was of falling from a height to the ground . . . . Nor does this assertion, made without citation to a factual basis, create a dispute of fact about the risk inherent in occupational therapy with young, active children with sensory integration dysfunction.