Court Finds That Primary Assumption Of Risk Doctrine Does Not Apply To Mandatory Physical Education Classes

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Aug 30, 2023

In 2018, Plaintiff Nigel B. was an eighth-grade student at John Muir Middle School, part of the Burbank Unified School District. A fellow eighth-grader, Gianni, frequently physically and verbally bullied Nigel. Other students also witnessed this bullying. However, no one reported it to school officials.

Nigel’s physical education teacher, Dylan Washausen, “passively” supervised students and was always on his phone during class. Students in his class routinely roughhoused Nigel. Washausen told students who were involved in altercations or injuries not to “go home and whine about this to [their] parents.” During ultimate frisbee, a student, Richard, twisted Nigel’s arm and asked him if he wanted to die. While Nigel did report this to the assistant principal responsible for student discipline, neither the principal nor the assistant principal alerted Washausen, and Richard’s bullying continued. Another student, Nick, pushed Nigel from behind so hard that his head bounced off the ground. Washausen yelled at Nick and asked Nigel if he wanted to get Nick in trouble. Nigel said “no” because he believed that “snitches [got] stitches.” Washausen did not discipline Nick.

On April 17, 2018, Gianni and Nigel were playing a competitive game of touch football on opposing teams during a mandatory physical education class. When Nigel caught a pass, Gianni ran into him at full speed, sending Nigel flying several feet in the air. Nigel fell on his left side and screamed in pain as he tore a ligament in his knee. A student ran to tell Washausen, who was surprised by the injury.

Nigel sued the District and Washausen for negligence and breach of a mandatory duty in violation of Education Code Section 49079. Education Code Section 49079 requires a school district to inform teachers about students who have engaged in or who are reasonably suspected of causing or threatening physical injury or willfully using violence on another person.

At trial, the District requested that the court instruct the jury on the primary assumption of risk doctrine. The primary assumption of risk doctrine applies to activities “involving an inherent risk of injury to voluntary participants where the risk cannot be eliminated without altering the fundamental nature of the activity.” The trial court ruled that the doctrine did not apply because the injury occurred in a mandatory class. The jury found that the District breached a mandatory duty under the Education Code, that Washausen was negligent, and that Nigel suffered resulting harm. The jury awarded Nigel $500,000 for future medical expenses, $750,000 for past noneconomic damages, and $500,000 for future noneconomic damages. The District appealed.

The California Court of Appeal for the Second District found that the District did not breach its mandatory duty because Nigel did not provide substantial evidence to show that the District’s failure to report other students’ conduct toward him to teachers caused his injury. To find liability for a breach of Section 49079 (a), the breach must be a substantial factor in the cause of the injury.

There was no evidence that the District knew of Gianni’s behavior, so the District could not have breached their mandatory duty in that manner. The Court of Appeal also found that even though Gianni acted intentionally and not negligently, the trial court should have instructed the jury on comparative fault and the jury should have been able to allocate fault accordingly. The Court of Appeal remanded on the issue of comparative fault.

The Court of Appeal upheld the trial court’s ruling that the primary assumption of risk doctrine does not apply to a mandatory class. The Court of Appeal emphasized that “voluntary participation” is necessary for the primary assumption of risk doctrine to apply, and mandatory physical education class activities are not voluntary.  Accordingly, the trial court did not err when it refused to instruct the jury on the primary assumption of risk doctrine.

Nigel B. v. Burbank Unified Sch. Dist. (2023) 93 Cal. App. 5th 64, reh’g denied (July 25, 2023).

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