Primary Assumption of Risk Arguments Still Kicking
Tanya Honeycutt v. Meridian Sports Club, LLC
Court Of Appeal, Second Appellate District (November 6, 2014)
The primary assumption of the risk doctrine has been used to provide immunity from suits for certain sporting and recreational activities, based on the public policy consideration that such activities are to be encouraged, rather than discouraged. The immunity from suit typically applies so long as the defendant did not do anything to increase the “inherent risk” of the activity.
In this matter, Plaintiff Tanya Honeycutt (“Honeycutt”) participated in a kickboxing class at Meridian Sports Club, LLC (“Meridian”), taught by Hakeem Alexander (“Alexander”), a certified personal trainer and martial arts instructor. This was her first time participating in kickboxing. Before the class, Honeycutt signed an agreement which contained an express assumption of the risk provision, acknowledging use of Meridian’s facilities naturally involves risk of injury, which the Honeycutt understood and voluntarily accepted. According to the agreement, the Honeycutt agreed that Meridian would not be liable for any injury resulting from negligence by Meridian at or on the premises.
As part of the class, Honeycutt and the other students were being asked to perform a roundhouse kick. A roundhouse or swinging kick is performed by swinging the leg in a semicircular motion while pivoting on the supporting foot, striking with the shin, instep, or ball of the foot. Alexander observed Honeycutt incorrectly attempting a roundhouse kick, keeping her supporting foot flat on the floor rather than going up on the toe in order to more easily pivot. Alexander approached Honeycutt and corrected her form. Thereafter, while performing a roundhouse kick, Honeycutt allegedly injured her knee.
Honeycutt sued Meridian for negligence and gross negligence. She alleged that Alexander acted with gross negligence when he manipulated her leg, causing her knee to snap. Meridian filed a Motion for Summary Judgment arguing that it was not grossly negligent, and that the release signed by Honeycutt barred her action. In opposition to Meridian’s Motion for Summary Judgment, Honeycutt provided an expert declaration that stated that a roundhouse kick is an intermediate or advanced technique, and that the proper teaching method did not involve touching the student, but instead involved demonstrating and verbalizing the maneuver, regressing to an easier maneuver if the kick was too difficult for the student’s skills. Meridian objected to the declaration. The trial court overruled the objections, and held that there were triable issues of fact whether Meridian increased the risk of injury and whether it acted with gross negligence. Meridian filed a petition for a writ of mandate which was granted, and the trial court was ordered to enter judgment in Meridian’s favor. Honeycutt appealed.
Judgment in favor of Meridian was affirmed on appeal. It noted that the Supreme Court had established that coaches and instructors have a duty not to increase the risks inherent in sports participation, and that an instructor may be found to have breached a duty of care only if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is “totally outside the range of the ordinary activity” involved in teaching or coaching the sport.
There was no argument that the instructor intentionally injured Honeycutt, and the court held there was no evidence that he engaged in reckless conduct. The uncontroverted facts showed that Honeycutt was performing roundhouse kicks along with other students, that Alexander saw that she was performing the kicks incorrectly and he took steps to assist her in proper execution of the movement. According to the Court, injuries to shoulders, hands, and knees are risks inherent in a vigorous, physical activity such as kickboxing. These types of injuries are entirely foreseeable, with or without the physical intervention of an instructor. Based on these facts, the Court held that the injury fell squarely within the doctrine of primary assumption of the risk.
The Court also disagreed with Honeycutt’s argument that by grabbing her leg and directing her to rotate without demonstrating the maneuver, Alexander had acted with gross negligence. Honeycutt argued that her expert’s declaration stated that an instructor should not touch the student, and instead should demonstrate and verbalize the maneuver, regressing to an easier maneuver if the kick was too difficult for the student’s skills. Based on past cases, the Court noted that “a mere difference of opinion as to how a student should be instructed does not constitute evidence of gross negligence.” There was nothing in the expert declaration showing gross negligence, and the release signed by Honeycutt precluded liability for general negligence.
Primary assumption of the risk is one of the few areas that are strong for the defense of negligence claims, particularly where sporting or recreational activities are involved. As long as the co-participant or instructor does not intentionally injure the plaintiff, or increase inherent risk of the activity, courts will continue to honor releases of liability for the risk.
ABOUT THE AUTHOR: David Ramirez is a Senior Counsel at TYSON & MENDES, LLP, and primarily represents clients in complex litigation, including construction defect, insurance law, property disputes, and product liability. Mr. Ramirez was recently named as a “Top Lawyer” of San Diego for “Complex Litigation” in the March 2014 issue of San Diego Magazine.
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