Supreme Court of California Justia
Citation 38 Cal. 4th 148, 131 P.3d 383, 41 Cal. Rptr. 3d 299

Avila v. Citrus Community College Dist.

Filed 4/6/06

IN THE SUPREME COURT OF CALIFORNIA

JOSE LUIS AVILA,
Plaintiff and Appellant,
S119575
v.
Ct.App. 2/5 B158572
CITRUS COMMUNITY COLLEGE
DISTRICT,
Los Angeles County
Super. Ct. No. KC037803
Defendant and Respondent.

During an intercollegiate baseball game at a community college, one of the
home team’s batters is hit by a pitch. In the next half-inning, the home team’s
pitcher allegedly retaliates with an inside pitch and hits a visiting batter in the
head. The visiting batter is injured, he sues, and the courts must umpire the
dispute.
We are asked to make calls on two questions: (1) Does Government Code
section 831.7, which immunizes public entities from liability for injuries sustained
during “hazardous recreational activities,” bar recovery against the home
community college district, and (2) if not, does the community college district owe
any duty to visiting players that might support liability? We conclude that section
831.7 does not extend to injuries sustained during supervised school sports, but
1


that on the facts alleged the host school breached no duty of care to the injured
batter. We reverse the judgment of the Court of Appeal.
FACTUAL AND PROCEDURAL BACKGROUND1
Jose Luis Avila, a Rio Hondo Community College (Rio Hondo) student,
played baseball for the Rio Hondo Roadrunners. On January 5, 2001, Rio Hondo
was playing a preseason road game against the Citrus Community College Owls
(Citrus College). During the game, a Roadrunners pitcher hit a Citrus College
batter with a pitch; when Avila came to bat in the top of the next inning, the Citrus
College pitcher hit him in the head with a pitch, cracking his batting helmet. Avila
alleges the pitch was an intentional “beanball” thrown in retaliation for the
previous hit batter or, at a minimum, was thrown negligently.
Avila staggered, felt dizzy, and was in pain. The Rio Hondo manager told
him to go to first base. Avila did so, and when he complained to the Rio Hondo
first base coach, he was told to stay in the game. At second base, he still felt pain,
numbness, and dizziness. A Citrus College player yelled to the Rio Hondo dugout
that the Roadrunners needed a pinch runner. Avila walked off the field and went
to the Rio Hondo bench. No one tended to his injuries. As a result, Avila suffered
unspecified serious personal injuries.
Avila sued both schools, his manager, the helmet manufacturer, and various
other entities and organizations. Only the claims against the Citrus Community
College District (the District) are before us. Avila alleged that the District was
negligent in failing to summon or provide medical care for him when he was
obviously in need of it, failing to supervise and control the Citrus College pitcher,

1
Because this appeal is from the sustaining of a demurrer, we take the facts
recited in Avila’s complaint as true. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
2


failing to provide umpires or other supervisory personnel to control the game and
prevent retaliatory or reckless pitching, and failing to provide adequate equipment
to safeguard him from serious head injury. Avila also alleged that the District
acted negligently by failing to take reasonable steps to train and supervise its
managers, trainers, employees, and agents in providing medical care to injured
players and by conducting an illegal preseason game in violation of community
college baseball rules designed to protect participants such as Avila.
The District demurred, contending it was protected by Government Code
section 831.7, subdivision (a),2 a public entity tort immunity statute. The District
also contended that under Ochoa v. California State University (1999) 72
Cal.App.4th 1300 (Ochoa), it owed no duty of care to Avila. The trial court
sustained the demurrer and dismissed the action against the District.
A divided Court of Appeal reversed. Relying on Acosta v. Los Angeles
Unified School Dist. (1995) 31 Cal.App.4th 471 (Acosta) and Iverson v. Muroc
Unified School Dist. (1995) 32 Cal.App.4th 218 (Iverson), the majority concluded
that section 831.7 does not extend immunity to claims predicated on the negligent
supervision of public school athletes and that the District owed a duty of
supervision to Avila. The dissent argued that Acosta and Iverson create a limited
exception only for secondary school students and that section 831.7 immunity
applied.
We granted the District’s petition for review to resolve an apparent split in
the Courts of Appeal concerning the scope of section 831.7 immunity and to
address the extent of a college’s duty in these circumstances.

2
All subsequent unlabeled statutory references are to the Government Code.
3


DISCUSSION
I. Section 831.7 Immunity
As always, we begin our analysis of a statute’s meaning with its text.
(Elsner v. Uveges (2005) 34 Cal.4th 915, 927.) Section 831.7 provides: “Neither
a public entity nor a public employee is liable to any person who participates in a
hazardous recreational activity . . . for any damage or injury to property or persons
arising out of that hazardous recreational activity.” (Id., subd. (a).) In turn, a
“hazardous recreational activity” is defined as “a recreational activity conducted
on property of a public entity which creates a substantial (as distinguished from a
minor, trivial, or insignificant) risk of injury to a participant or a spectator.” (Id.,
subd. (b).) “Hazardous recreational activity” is further defined by a nonexclusive
list of activities that qualify, including such activities as diving, skiing, hang
gliding, rock climbing, and body contact sports. (Ibid.)
The text is ambiguous. The statute does not specifically define
“recreational activity,” but instead includes a definition for “hazardous
recreational activity.” That definition defines and illustrates what is meant by the
term “hazardous,” while merely reusing the phrase “recreational activity.”
(§ 831.7, subd. (b).) The term “recreational,” however, is susceptible to multiple
interpretations. For example, “recreation” may be defined as “Refreshment of
one’s mind or body after work through some activity that amuses or stimulates;
play.” (American Heritage Dict. (2d college ed. 1982) p. 1035, italics added.)
Under this definition, not only the nature of the activity but the context matters.
Pitching in an adult amateur softball game would qualify as recreational; pitching
for the Oakland Athletics or San Francisco Giants professional baseball teams
would not. What of playing in a high school or intercollegiate baseball game,
which falls somewhere between these extremes? Does it matter if one is a
scholarship athlete, and thus receiving some form of reward for one’s continued
4
performance, or if one’s participation in a sporting activity is compulsory because
of state laws governing physical education instruction? The text alone cannot
answer these questions.
This ambiguity is reflected in the disparate conclusions the Courts of
Appeal have reached when applying the statutory language to negligence claims
against schools and universities. For example, in Acosta, supra, 31 Cal.App.4th
471, a high school gymnast was practicing at his high school during the off-season
under the supervision of an assistant gymnastics coach. He fell during a difficult
maneuver, landed on his neck, and was rendered a quadriplegic. The Court of
Appeal ruled that section 831.7 did not immunize the school district from liability
for negligent supervision. While the court acknowledged that gymnastics was a
hazardous activity, it concluded that school districts have a well-established duty
to provide reasonable supervision of school-sponsored extracurricular sports
programs. (Acosta, at pp. 477-478 [citing Leger v. Stockton Unified School Dist.
(1988) 202 Cal.App.3d 1448, 1459, and numerous additional out-of-state
authorities].) The court found no indication the Legislature, when it adopted
section 831.7, had intended to abrogate that duty. In order to resolve the conflict
between the language of section 831.7 and the line of cases establishing a duty of
supervision, the Acosta court reasoned that the term “recreational” should be
interpreted to exclude supervised school-sponsored extracurricular athletics.
(Acosta, at pp. 476, 478.)
In Iverson, supra, 32 Cal.App.4th 218, an eighth-grade student was injured
by a hard tackle during a physical education class soccer game. Here again, the
court rejected section 831.7 immunity. Though distinguishing Acosta as involving
extracurricular activities, Iverson agreed with much of its reasoning. It found in
the legislative history of the statute no indication the Legislature intended to
immunize schools from liability for injuries to students participating in school
5
sports. While recognizing that soccer might be hazardous, Iverson agreed with
Acosta that school sports activities could fairly be excluded from the definition of
“recreational.” Because Iverson was not injured during participation in a
hazardous “recreational” activity, section 831.7 had no application. (Iverson, at
pp. 225-227.)
In contrast, in Ochoa, supra, 72 Cal.App.4th 1300, a California State
University, Sacramento (Sacramento State) student was injured in an intramural
soccer game. Escalating roughness culminated in one player throwing a punch,
catching plaintiff Ochoa in the jaw. Ochoa sued Sacramento State for negligently
failing to supervise the game. The trial court granted Sacramento State’s motion
for summary judgment and the Court of Appeal affirmed, concluding that section
831.7 immunized the university from liability. (Ochoa, at p. 1306.) The court
distinguished Acosta and Iverson as not involving adult students engaged in
voluntary activities. Because soccer is a hazardous activity and Ochoa was an
adult who was neither required nor expected to participate in the match, the court
determined Ochoa was injured during a hazardous “recreational” activity within
the meaning of section 831.7 and, accordingly, held Sacramento State absolutely
immune. (Ochoa, at p. 1308.)
In the absence of an unambiguous plain meaning, we must look to extrinsic
sources such as legislative history to determine the statute’s meaning. (Wilcox v.
Birtwhistle (1999) 21 Cal.4th 973, 977.) Our review of the legislative history of
section 831.7 leads us to agree with Acosta and Iverson. The statute’s roots lie in
Civil Code section 846, a premises liability statute that provides qualified
immunity for landowners against claims by recreational users: “An owner of any
estate or any other interest in real property, whether possessory or nonpossessory,
owes no duty of care to keep the premises safe for entry or use by others for any
recreational purpose or to give any warning of hazardous conditions, uses of,
6
structures, or activities on such premises to persons entering for such purpose,
except as provided in this section.” Civil Code section 846 leaves in place
whatever common law premises liability would exist “(a) for willful or malicious
failure to guard or warn against a dangerous condition, use, structure or activity; or
(b) for injury suffered in any case where permission to enter for the above purpose
was granted for a consideration other than the consideration, if any, paid to said
landowner by the state, or where consideration has been received from others for
the same purpose; or (c) to any persons who are expressly invited rather than
merely permitted to come upon the premises by the landowner.” (Civ. Code,
§ 846.)
In the late 1970’s, a split of authority developed over whether Civil Code
section 846 immunity extended to public entities. Early cases assumed it did.
(See English v. Marin Municipal Water Dist. (1977) 66 Cal.App.3d 725, 728-731;
Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1025-1028;
Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72; Blakley v. State of
California (1980) 108 Cal.App.3d 971, 975.) Later cases reversed this trend.
(See, e.g., Nelsen v. City of Gridley (1980) 113 Cal.App.3d 87, 91.) This court
finally resolved the issue in 1983, siding with the later cases and holding that
public entities are not protected by Civil Code section 846. (Delta Farms
Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710.)
While Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d
699, was still pending in this court, Assemblyman Robert Campbell responded to
the uncertainty by introducing Assembly Bill No. 555 (1983-1984 Reg. Sess.),
which proposed new Government Code section 831.7. The bill’s source, the East
Bay Regional Park District, had expressed concern that because it was virtually
impossible to prevent park users from engaging in hazardous recreational
activities, substantial legal claims from recreational users might force it to limit
7
park access. Other supporters decried allegedly baseless personal injury and
property damage suits by recreational public property users. (Assem. Com. on
Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as introduced
Feb. 10, 1983, p. 2; Richard C. Trudeau, General Manager, East Bay Regional
Park District, letter to Senate Com. on Judiciary, May 26, 1983; Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended
May 31, 1983, p. 7.) The Assembly Committee on the Judiciary analysis of the
bill noted the uncertainty in the Courts of Appeal over the availability of Civil
Code section 846 qualified immunity to public entities. (Assem. Com. on
Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Session) as
introduced Feb. 10, 1983, pp. 2-3.) It explained that Civil Code section 846’s
“qualified immunity is [intended] to encourage landowners to make their land
available to the general public for recreational purposes without risk of tort
liability for permitting that use” and that “[t]his bill is patterned after Civil Code
[s]ection 846.” (Id. at pp. 2, 3; see also Sen. Com. on Judiciary, Analysis of
Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended May 27, 1983, p. 4
[“This bill is patterned after existing law which generally provides that a private
owner of any interest in land owes no duty to keep the premises safe or to warn of
dangerous conditions when people are permitted to use the land for recreation”].)
The Senate Committee on the Judiciary’s analysis confirms that
Government Code section 831.7 was designed to mirror Civil Code section 846’s
circumscription of property-based duties. Assembly Bill No. 555, “by providing a
qualified immunity, would limit a public entity’s duty to keep its land safe for
certain recreational users.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No.
555 (1983-1984 Reg. Sess.) as amended May 31, 1983, p. 7, italics added.) The
bill’s focus, the analysis explained, was on recreational users who might injure
themselves during hazardous unsupervised activities and attempt to attribute their
8
injuries to conditions of public property. “The primary purpose of [Assembly Bill
No. 555] is to prevent the hang glider or rock climber from suing a public entity
when that person injured himself in the course of the activity.” (Sen. Com. on
Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended
May 27, 1983, p. 6.)
Thus, Government Code section 831.7 was adopted as a premises liability
measure, modeled on Civil Code section 846, and designed to limit liability based
on a public entity’s failure either to maintain public property or to warn of
dangerous conditions on public property. Nothing in the history of the measure
indicates the statute was intended to limit a public entity’s liability arising from
other duties, such as any duty owed to supervise participation in particular
activities. Consistent with the legislative history, those cases applying section
831.7 immunity generally have done so only in the context of injuries sustained
during voluntary, unsupervised, unsponsored activities and have barred claims
alleging breach of the duty to maintain property or to warn of unsafe conditions.
(E.g., Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960 [§ 831.7 barred
claim for injury sustained during unsupervised, unsponsored boating]; Yarber v.
Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516 [same for injury
sustained during after-hours adult basketball game]; Tessier v. City of Newport
Beach (1990) 219 Cal.App.3d 310 [same for injury sustained during unsupervised
diving].)
Separate and apart from the body of law governing premises liability
claims, another body of law establishes that public schools and universities owe
certain nonproperty-based duties to their students. Public schools have a duty to
supervise students (Ed. Code, § 44807; Hoyem v. Manhattan Beach City School
Dist. (1978) 22 Cal.3d 508, 513; Dailey v. Los Angeles Unified School Dist.
(1970) 2 Cal.3d 741, 747), a duty that extends to athletic practice and play (see
9
Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459).
Although with the demise of the in loco parentis doctrine, colleges and universities
do not owe similarly broad duties of supervision to all their students (Stockinger v.
Feather River Community College (2003) 111 Cal.App.4th 1014, 1031-1032;
Crow v. State of California (1990) 222 Cal.App.3d 192, 209; Baldwin v. Zoradi
(1981) 123 Cal.App.3d 275, 287-291), that development has not limited the
recognition that colleges and universities owe special duties to their athletes when
conducting athletic practices and games.3
As Acosta, supra, 31 Cal.App.4th 471, correctly notes, a tension exists
between the immunity language of section 831.7, on the one hand, and the long-
standing statutory and common law duties of student supervision schools have
been recognized to have both before and after passage of section 831.7. Tension
likewise exists between the legislative history of the statute, which establishes an
intent focused exclusively on premises liability claims, and the language the
Legislature chose to effectuate its purpose, which conceivably could be applied to

3
Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430,
435-436 (college instructor has duty not to increase risks inherent in participation
in sport); Kleinknecht v. Gettysburg College (3d Cir. 1993) 989 F.2d 1360, 1372
(college owes duty to student-athlete to have timely medical care available);
Stineman v. Fontbonne College (8th Cir. 1981) 664 F.2d 1082, 1086 (same);
Davidson v. University of North Carolina (N.C.Ct.App. 2001) 543 S.E.2d 920,
926-928 (university owes duty of care to members of school-sponsored
intercollegiate team); see also Comment, Malpractice During Practice: Should
NCAA Coaches Be Liable for Negligence?
(2002) 22 Loyola L.A. Ent. L.Rev. 613,
625-635; Comment, Do Universities Have a Special Duty of Care to Protect
Student-Athletes from Injury?
(1999) 6 Vill. Sports & Ent. L.J. 219, 224-229;
Comment, The Special Relationship Between Student-Athletes and Colleges: An
Analysis of a Heightened Duty of Care for the Injuries of Student-Athletes
(1996)
7 Marq. Sports L.J. 329, 338-342; Whang, Necessary Roughness: Imposing a
Heightened Duty of Care on Colleges for Injuries of Student-Athletes
(1995)
2 Sports Law. J. 25, 39-44 (hereafter Whang).
10


a broader range of claims. (Acosta, at p. 476.) But, as in Acosta, we need not
decide whether the immunity created by section 831.7 extends only to premises
liability claims. We agree with Acosta and Iverson, supra, 32 Cal.App.4th 218,
that these tensions can be resolved by acknowledging that school-sponsored and
supervised sports activities are not “recreational” in the sense intended by the
statute, and thus section 831.7 does not apply to immunize public educational
entities from liability to students for injuries sustained during participation in such
activities.
As noted, the legislative history demonstrates the Legislature had in mind
immunizing public entities from liability arising from injuries sustained by
members of the public during voluntary unsupervised play on public land, in order
to prevent public entities from having to close off their land to such use to limit
liability. Such activities may be fairly characterized as recreational. Sports in the
school environment, in contrast, are not “recreational” in the sense of voluntary
unsupervised play, but rather part and parcel of the school’s educational mission.
“It can no longer be denied that extracurricular activities constitute an integral
component of public education.” (Hartzell v. Connell (1984) 35 Cal.3d 899, 909.)
“They are ‘[no] less fitted for the ultimate purpose of our public schools, to wit,
the making of good citizens physically, mentally, and morally, than the study of
algebra and Latin . . . .’ ” (Ibid., italics added.) Interscholastic athletics are a
fundamental, integral part of public education.4 Through high school,

4
See Brentwood Acad. v. Tennessee SSAA (2001) 531 U.S. 288, 299; City of
Santa Cruz v. Santa Cruz City Schools Bd. of Education (1989) 210 Cal.App.3d 1,
8-9; Kelley v. Metropolitan County Bd. of Education (M.D.Tenn. 1968) 293
F.Supp. 485, 493; Lee v. Macon County Bd. of Education (M.D.Ala. 1968) 283
F.Supp. 194, 197.
11


participation in physical education classes is mandatory. (Ed. Code, §§ 51210,
subd. (g), 51220, subd. (d), 51222; see also id., § 51210.2, subd. (a) [declaring
physical fitness of equal importance with other elements of curriculum].)
Likewise, “[c]ollege athletic programs have long been regarded as integral
components of the college experience.” (Whang, supra, 2 Sports Law. J. at p. 25;
see California State University, Hayward v. National Collegiate Athletic Assn.
(1975) 47 Cal.App.3d 533, 541-542.) Intercollegiate athletics are part and parcel
of community colleges’ educational mission as well. (Cabrillo Community
College Dist. v. California Junior College Assn. (1975) 44 Cal.App.3d 367, 372-
373.) And, as discussed above, a separate body of law has developed to govern
the special duties that schools and colleges owe their athletes.
The paramount goal of statutory interpretation is to “ascertain the intent of
the drafters so as to effectuate the purpose of the law.” (Esberg v. Union Oil Co.
of Cal. (2002) 28 Cal.4th 262, 268.) Nothing in the legislative history indicates
the Legislature ever contemplated or intended that passage of section 831.7 would
overrule the body of law governing supervisorial duties and liability in the school
sports context. We agree with the Court of Appeal in Acosta, supra, 31
Cal.App.4th at page 478: In the absence of any indication of such a legislative
intent, we will not read section 831.7 as immunizing public entities from potential
liability arising out of their oversight of school-sponsored activities. Thus, we
conclude that school sports in general, and organized intercollegiate games in
particular, are not “recreational” within the meaning of the statute.5 Avila was

5
Taking the allegations of the complaint as true, it is clear Avila’s injury
occurred during a school-sponsored intercollegiate game that was supervised in
part by Citrus College coaches. We need not define further the degree of school
sponsorship necessary to render participation in a hazardous sport
“nonrecreational.” Consequently, we have no occasion to question the conclusion

(footnote continued on next page)
12


injured while participating in an intercollegiate baseball game. Section 831.7 does
not immunize the District from liability.
II. The Duty of Care Owed College Athletes
A. Primary Assumption of the Risk and the Duty Not to Increase
Risks Inherent in a Sport
The District asserted as an alternate basis for demurrer that it owed Avila
no duty of care. To recover for negligence, Avila must demonstrate, inter alia, that
the District breached a duty of care it owed him. 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. (Rowland v. Christian (1968) 69 Cal.2d 108, 112.) By
statute, the Legislature has extended this common law standard of tort liability to
public employees (§ 820, subd. (a); Hoff v. Vacaville Unified School Dist. (1998)
19 Cal.4th 925, 932) and has extended liability for public employees’ negligent
acts to public entity defendants (§ 815.2, subd. (a); Hoff, at p. 932).
The existence of “ ‘ “[d]uty” is not an immutable fact of nature “ ‘but only
an expression of the sum total of those considerations of policy which lead the law
to say that the particular plaintiff is entitled to protection.’ ” ’ ” (Parsons v. Crown
Disposal Co. (1997) 15 Cal.4th 456, 472.) Thus, the existence and scope of a
defendant’s duty is an issue of law, to be decided by a court, not a jury. (Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) When the injury

(footnote continued from previous page)
that injuries sustained in unsupervised intramural or club matches may fall within
the scope of section 831.7. (See Ochoa, supra, 72 Cal.App.4th at pp. 1307-1308
[holding injury from voluntary participation in intramural match subject to § 831.7
immunity].) However, to the extent Ochoa v. California State University, supra,
72 Cal.App.4th 1300, 1308, suggests section 831.7 always immunizes universities
against liability for injuries sustained by their adult student-athletes, we
disapprove it.
13


is to a sporting participant, the considerations of policy and the question of duty
necessarily become intertwined with the question of assumption of risk.
The traditional version of the assumption of risk doctrine required proof
that the plaintiff voluntarily accepted a specific known and appreciated risk.
(Prescott v. Ralph’s Grocery Co. (1954) 42 Cal.2d 158, 161-162, citing Rest.,
Torts, § 893.) The doctrine depended on the actual subjective knowledge of the
given plaintiff (Shahinian v. McCormick (1963) 59 Cal.2d 554, 567) and, where
the elements were met, was an absolute defense to liability for injuries arising
from the known risk (Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 731).
California’s abandonment of the doctrine of contributory negligence in
favor of comparative negligence (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804) led
to a reconceptualization of the assumption of risk. In Knight v. Jewett (1992) 3
Cal.4th 296 (Knight), a plurality of this court explained that there are in fact two
species of assumption of risk: primary and secondary. (Id. at pp. 308-309 (plur.
opn. of George, J.).) Primary assumption of the risk arises when, as a matter of
law and policy, a defendant owes no duty to protect a plaintiff from particular
harms. (Ibid.)6 Applied in the sporting context, it precludes liability for injuries
arising from those risks deemed inherent in a sport; as a matter of law, others have
no legal duty to eliminate those risks or otherwise protect a sports participant from
them. (Id. at pp. 315-316.) Under this duty approach, a court need not ask what
risks a particular plaintiff subjectively knew of and chose to encounter, but instead
must evaluate the fundamental nature of the sport and the defendant’s role in or

6
Secondary assumption of the risk arises when the defendant still owes a
duty of care, but the plaintiff knowingly encounters the risks attendant on the
defendant’s breach of that duty. (Knight, supra, 3 Cal.4th at p. 308.) We deal
here with an issue of primary, not secondary, assumption of the risk.
14


relationship to that sport in order to determine whether the defendant owes a duty
to protect a plaintiff from the particular risk of harm. (Id. at pp. 313, 315-317.) A
majority of this court has since embraced the Knight approach. (Kahn v. East Side
Union High School Dist., supra, 31 Cal.4th at pp. 1004-1005; Cheong v. Antablin
(1997) 16 Cal.4th 1063, 1067-1068.)
Here, the host school’s role is a mixed one: its players are coparticipants,
its coaches and managers have supervisorial authority over the conduct of the
game, and other representatives of the school are responsible for the condition of
the playing facility. We have previously established that coparticipants have a
duty not to act recklessly, outside the bounds of the sport (Knight, supra, 3 Cal.4th
at pp. 318-321), and coaches and instructors have a duty not to increase the risks
inherent in sports participation (Kahn v. East Side Union High School Dist., supra,
31 Cal.4th at pp. 1005-1006); we also have noted in dicta that those responsible
for maintaining athletic facilities have a similar duty not to increase the inherent
risks, albeit in the context of businesses selling recreational opportunities (Parsons
v. Crown Disposal Co., supra, 15 Cal.4th at p. 482 [collecting cases]). In contrast,
those with no relation to the sport have no such duty. (Id. at pp. 482-483 [garbage
truck operator has no duty not to increase risks inherent in horseback riding].)
In interscholastic and intercollegiate competition, the host school is not a
disinterested, uninvolved party vis-à-vis the athletes it invites to compete on its
grounds. Without a visiting team, there can be no competition. Intercollegiate
competition allows a school to, on the smallest scale, offer its students the benefits
of athletic participation and, on the largest scale, reap the economic and marketing
benefits that derive from maintenance of a major sports program.7 These benefits

7
These benefits may include enhanced recruitment of athletes and other
students, increased alumni donations, and revenue from the sale of broadcasting

(footnote continued on next page)
15


justify removing a host school from the broad class of those with no connection to
a sporting contest and no duty to the participants. In light of those benefits, we
hold that in interscholastic and intercollegiate competition, the host school and its
agents owe a duty to home and visiting players alike to, at a minimum, not
increase the risks inherent in the sport. Schools and universities are already
vicariously liable for breaches by the coaches they employ, who owe a duty to
their own athletes not to increase the risks of sports participation. (Kahn v. East
Side Union High School Dist., supra, 31 Cal.4th at pp. 1005-1006.) No reason
appears to conclude intercollegiate athletics will be harmed by making visiting
players, necessary coparticipants in any game, additional beneficiaries of the
limited duty not to increase the risks of participation. Thus, we disagree with the
Court of Appeal dissent, which argued that the District is little more than a passive
provider of facilities and therefore should have no obligation to visiting players.
The District relies on cases establishing that colleges and universities owe
no general duty to their students to ensure their welfare. (Crow v. State of
California, supra, 222 Cal.App.3d at p. 209; Baldwin v. Zoradi, supra, 123
Cal.App.3d at pp. 287-291.) We have no quarrel with these cases. Nor do we
have occasion to decide what duties a college or university might owe in the
context of intracollegiate competition, as with the intramural competition at issue
in Ochoa, supra, 72 Cal.App.4th 1300, also relied upon by the District. The duty
of a host school to its own and visiting players in school-supervised athletic events
is an exception to the general absence of duty, an exception plainly warranted by

(footnote continued from previous page)
rights. (See Note, Taking One for the Team: Davidson v. University of North
Carolina and the Duty of Care Owed by Universities to Their Student-Athletes

(2002) 37 Wake Forest L.Rev. 589, 589-590, 605-606; Whang, supra, 2 Sports
Law. J. at pp. 26-27, 40-42.)
16


the relationship of the host school to all the student participants in the
competitions it sponsors.
B. Application
We consider next whether Avila has alleged facts supporting breach of the
duty not to enhance the inherent risks of his sport. Though it numbers them
differently, Avila’s complaint in essence alleges four ways in which the District
breached a duty to Avila: by (1) conducting the game at all; (2) failing to control
the Citrus College pitcher; (3) failing to provide umpires to supervise and control
the game; and (4) failing to provide medical care.8 The District’s demurrer was
properly sustained if, and only if, each of these alleged breaches, assumed to be
true, falls outside any duty owed by the District and within the inherent risks of the
sport assumed by Avila.
With respect to the first of these, conducting the game, Avila cites
unspecified “community college baseball rules” prohibiting preseason games. But
the only consequence of the District’s hosting the game was that it exposed Avila,
who chose to participate, to the ordinary inherent risks of the sport of baseball.
Nothing about the bare fact of the District’s hosting the game enhanced those
ordinary risks, so its doing so, whether or not in violation of the alleged rules, does
not constitute a breach of its duty not to enhance the ordinary risks of baseball.
Nor did the District owe any separate duty to Avila not to host the game.

8
Avila abandoned at oral argument a fifth theory, that the District breached a
duty to him by providing faulty equipment, counsel stating he had learned through
discovery that the District had not furnished the allegedly defective batting helmet.
We take a dim view of counsel’s decision to wait until oral argument to apprise
this court that a claim is being abandoned. When counsel learns of new facts that
cause him to abandon a claim, the proper course is promptly to advise opposing
counsel and the court.
17


The second alleged breach, the failure to supervise and control the Citrus
College pitcher, is barred by primary assumption of the risk. Being hit by a pitch
is an inherent risk of baseball. (Balthazor v. Little League Baseball, Inc. (1998) 62
Cal.App.4th 47, 51-52; see also Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d
729, 734 [same re being hit by thrown ball].) The dangers of being hit by a pitch,
often thrown at speeds approaching 100 miles per hour, are apparent and well
known: being hit can result in serious injury or, on rare tragic occasions, death.9
Being intentionally hit is likewise an inherent risk of the sport, so accepted
by custom that a pitch intentionally thrown at a batter has its own terminology:
“brushback,” “beanball,” “chin music.” In turn, those pitchers notorious for
throwing at hitters are “headhunters.” Pitchers intentionally throw at batters to
disrupt a batter’s timing or back him away from home plate, to retaliate after a
teammate has been hit, or to punish a batter for having hit a home run. (See, e.g.,
Kahn, The Head Game (2000) pp. 205-239.) Some of the most respected baseball
managers and pitchers have openly discussed the fundamental place throwing at
batters has in their sport. In George Will’s study of the game, Men at Work, one-
time Oakland Athletics and current St. Louis Cardinals manager Tony La Russa
details the strategic importance of ordering selective intentional throwing at
opposing batters, principally to retaliate for one’s own players being hit. (Will,
Men at Work (1990) pp. 61-64.) As Los Angeles Dodgers Hall of Fame pitcher
Don Drysdale and New York Giants All Star pitcher Sal “The Barber” Maglie

9
Most famously, in August 1920, Cleveland Indians shortstop Roy Chapman
was hit by a pitch from the New York Yankees’ Carl Mays. He died the next day.
(Sowell, The Pitch that Killed (1989) pp. 165-190; James, The Bill James Baseball
Abstract (1985) pp. 131, 137.) At least seven other batters in organized baseball
have been killed by pitches. (James, at pp. 131, 137.)
18


have explained, intentionally throwing at batters can also be an integral part of
pitching tactics, a tool to help get batters out by upsetting their frame of mind.10
Drysdale and Maglie are not alone; past and future Hall of Famers, from Early
Wynn and Bob Gibson to Pedro Martinez and Roger Clemens, have relied on the
actual or threatened willingness to throw at batters to aid their pitching. (See, e.g.,
Kahn, The Head Game, at pp. 223-224; Yankees Aced by Red Sox, L.A. Times
(May 31, 2001) p. D7 [relating Martinez’s assertion that he would even throw at
Babe Ruth].)
While these examples relate principally to professional baseball, “[t]here is
nothing legally significant . . . about the level of play” in this case. (West v.
Sundown Little League of Stockton, Inc. (2002) 96 Cal.App.4th 351, 359-360; see
Balthazor v. Little League Baseball, Inc., supra, 62 Cal.App.4th at pp. 51-52;
Mann v. Nutrilite, Inc., supra, 136 Cal.App.2d at p. 734.) The laws of physics that
make a thrown baseball dangerous and the strategic benefits that arise from
disrupting a batter’s timing are only minimally dependent on the skill level of the
participants, and we see no reason to distinguish between collegiate and
professional baseball in applying primary assumption of the risk.
It is true that intentionally throwing at a batter is forbidden by the rules of
baseball. (See, e.g., Off. Rules of Major League Baseball, rule 8.02(d); National

10
Kahn, The Head Game, supra, at pages 211-212, 232-235. As Maglie
explained the strategy: “ ‘You have to make the batter afraid of the ball or,
anyway, aware that he can get hurt . . . . A good time is when the count is two
[balls] and two [strikes]. He’s looking to swing. You knock him down then and
he gets up shaking. Now [throw a] curve [to] him and you have your out.’ ” (Id.
at p. 211.) Maglie’s nickname is attributed to his propensity for shaving batters’
chins with his pitches. (Ibid.) Similarly for Drysdale: “ ‘[T]he knockdown pitch
upsets a hitter’s timing, like a change-up. It’s not a weapon. It’s a tactic.’ ” (Id.
at p. 235.)
19


Collegiate Athletic Assn., 2006 NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d),
p. 62.) But “even when a participant’s conduct violates a rule of the game and
may subject the violator to internal sanctions prescribed by the sport itself,
imposition of legal liability for such conduct might well alter fundamentally the
nature of the sport by deterring participants from vigorously engaging in activity
that falls close to, but on the permissible side of, a prescribed rule.” (Knight,
supra, 3 Cal.4th at pp. 318-319.) It is one thing for an umpire to punish a pitcher
who hits a batter by ejecting him from the game, or for a league to suspend the
pitcher; it is quite another for tort law to chill any pitcher from throwing inside,
i.e., close to the batter’s body—a permissible and essential part of the sport—for
fear of a suit over an errant pitch. For better or worse, being intentionally thrown
at is a fundamental part and inherent risk of the sport of baseball.11 It is not the
function of tort law to police such conduct.
In Knight, supra, 3 Cal.4th at page 320, we acknowledged that an athlete
does not assume the risk of a coparticipant’s intentional or reckless conduct
“totally outside the range of the ordinary activity involved in the sport.” Here,
even if the Citrus College pitcher intentionally threw at Avila, his conduct did not
fall outside the range of ordinary activity involved in the sport. The District owed

11
The conclusion that being intentionally hit by a pitch is an inherent risk of
baseball extends only to situations such as that alleged here, where the hit batter is
at the plate. Allegations that a pitcher intentionally hit a batter who was still in the
on-deck circle, or elsewhere, would present an entirely different scenario. (See
Note, Dollar Signs on the Muscle . . . and the Ligament, Tendon, and Ulnar
Nerve: Institutional Liability Arising from Injuries to Student-Athletes
(2001) 3
Va. J. Sports & L. 80, 80, 111-112 [recounting the notorious 1999 incident in
which Wichita State University pitcher Ben Christensen hit University of
Evansville second baseman Anthony Molina with a pitch while Molina was still in
the on-deck circle].)
20


no duty to Avila to prevent the Citrus College pitcher from hitting batters, even
intentionally. Consequently, the doctrine of primary assumption of the risk bars
any claim predicated on the allegation that the Citrus College pitcher negligently
or intentionally threw at Avila.12
The dissent suggests primary assumption of the risk should not extend to an
intentional tort such as battery and that Avila should have been granted leave to
amend to allege a proper battery claim. (Conc. & dis. opn. post, at pp. ___ [pp. 4,
7].) Amendment would have been futile. Absence of consent is an element of
battery. (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45-46.) “One who
enters into a sport, game or contest may be taken to consent to physical contacts
consistent with the understood rules of the game.” (Prosser & Keeton, Torts (5th
ed. 1984) § 18, p. 114; see also Knight, supra, 3 Cal.4th at p. 311 [“It may be
accurate to suggest that an individual who voluntarily engages in a dangerous
activity ‘consents to’ or ‘agrees to assume’ the risks inherent in the activity”];
Ritchie-Gamester v. City of Berkley (Mich. 1999) 597 N.W.2d 517, 524 [“The act
of stepping onto the field may be described as ‘consent to the inherent risks of the
activity’ ”].) Thus, the boxer who steps into the ring consents to his opponent’s

12
The dissent takes issue with our deciding this question. (Conc. & dis. opn.
post, at pp. ___ [pp. 5-7].) Notwithstanding the official condemnation we and the
dissent cite, pitchers have been throwing at batters for the better part of baseball’s
century-plus history. The taking of judicial notice of such matters is not reserved
to trial courts, but lies within the power of every court. (Evid. Code, § 459.) To
ignore this history in favor of reversal and remand would do nothing to enhance
respect for the trial and appellate courts’ respective roles. Similarly, a declaration
of the scope of a defendant’s duty is a statement of law. (Kahn v. East Side Union
High School Dist.
, supra, 31 Cal.4th at p. 1004.) Where, as here, the pleadings
and matters subject to judicial notice establish the defendant owed the plaintiff no
duty, a case may properly be disposed of on demurrer, without further waste of
judicial resources.
21


jabs; the football player who steps onto the gridiron consents to his opponent’s
hard tackle; the hockey goalie who takes the ice consents to face his opponent’s
slapshots; and, here, the baseball player who steps to the plate consents to the
possibility the opposing pitcher may throw near or at him. The complaint
establishes Avila voluntarily participated in the baseball game; as such, his
consent would bar any battery claim as a matter of law.
The third way in which Avila alleges the District breached its duty of care,
by failing to provide umpires, likewise did not increase the risks inherent in the
game. Baseball may be played with umpires, as between professionals at the
World Series, or without, as between children in the sandlot. Avila argues that
providing umpires would have made the game safer, because an umpire might
have issued a warning and threatened ejections after the first batter was hit.
Whatever the likelihood of this happening and the difficulty of showing causation,
the argument overlooks a key point. The District owed “a duty not to increase the
risks inherent in the sport, not a duty to decrease the risks.” (Balthazor v. Little
League Baseball, Inc., supra, 62 Cal.App.4th at p. 52; accord, West v. Sundown
Little League of Stockton, Inc., supra, 96 Cal.App.4th at p. 359.) While the
provision of umpires might—might—have reduced the risk of a retaliatory
beanball, Avila has alleged no facts supporting imposition of a duty on the District
to reduce that risk.
Finally, Avila alleges that the District breached a duty to him by failing to
provide medical care after he was injured. Relying on Brooks v. E. J. Willig Truck
Transportation Co. (1953) 40 Cal.2d 669 (Brooks), he argues that because the
District placed him in peril through the actions of the Citrus College pitcher, it had
a duty to ensure he received medical attention.
In some circumstances, the common law imposes a duty on those who
injure others to mitigate the resulting harm. Under the Restatement Second of
22
Torts, section 322, an actor who “knows or has reason to know that by his
conduct, whether tortious or innocent, he has caused such bodily harm to another
as to make him helpless and in danger of further harm . . . is under a duty to
exercise reasonable care to prevent such further harm.” In Brooks, we recognized
and applied this principle, holding in the context of a hit-and-run death that “[o]ne
who negligently injures another and renders him helpless is bound to use
reasonable care to prevent any further harm which the actor realizes or should
realize threatens the injured person.” (Brooks, supra, 40 Cal.2d at pp. 678-679.)
Avila’s proposed extension of Brooks to this case encounters at least three
main difficulties. First, Avila has not alleged a basis on which to conclude the
District caused his injury. Universities ordinarily are not vicariously liable for the
actions of their student-athletes during competition. (Townsend v. State of
California (1987) 191 Cal.App.3d 1530, 1536-1537 [university not vicariously
liable for actions of its basketball player]; see also Fox v. Board of Supervisors
(La. 1991) 576 So.2d 978, 982-983 [no vicarious liability for actions of rugby
club]; Kavanagh v. Trustees of Boston University (Mass. 2003) 795 N.E.2d 1170,
1174-1176 [no vicarious liability for actions of basketball player]; Hanson v.
Kynast (Ohio 1986) 494 N.E.2d 1091, 1096 [no vicarious liability for actions of
lacrosse player].) While Avila argues the District should be responsible for the
Citrus College pitcher’s conduct if the Citrus College coaches ordered or
condoned a retaliatory pitch, the complaint notably lacks any allegation they did
so.
Second, even if Avila might have amended his complaint to add such an
allegation, Brooks and the common law duty it recognizes are confined to
situations where the injured party is helpless. The complaint establishes that Avila
was able to make it to first and then second base under his own power, and was
able to alert his own first base coach to his condition. These allegations cast
23
serious doubt on whether Avila was sufficiently helpless so as to warrant imposing
a Brooks/Restatement Second of Torts, section 322-type duty on the District.
Third, even if we were to impose a duty, the face of the complaint
establishes that Avila’s own Rio Hondo coaches and trainers were present. They,
not Citrus College’s coaches, had exclusive authority to determine whether Avila
needed to be removed from the game for a pinch runner in order to receive
medical attention.13 Likewise, to the extent Avila argues a Citrus College-
provided umpire could have insisted Avila receive medical treatment, there is no
basis for concluding a home team umpire would have been authorized to overrule
the medical judgments of Rio Hondo’s trainers. Thus, even if the District were
responsible for causing Avila’s injury, at most it would have had a duty to ensure
that Avila’s coaches and trainers were aware he had been injured so they could
decide how best to attend to him. The complaint indicates Avila alerted his own
first base coach to how he was feeling, and when he arrived at second base, a
Citrus College player, recognizing Avila was injured, alerted the Rio Hondo
bench, at which point Rio Hondo removed Avila from the game. If the District
had a duty, it satisfied that duty. In the possibly apocryphal words of New York
Yankees catcher Yogi Berra, “It ain’t over till it’s over,” but this means that for
Avila’s complaint against Citrus College, it’s over.

13
Any departure from this rule would lead to chaos, as teams asserted a legal
duty to remove their opponents’ “injured” star players from competition in order
to evaluate them and provide any necessary medical care.
24


DISPOSITION
For the foregoing reasons, we reverse the judgment of the Court of Appeal.

WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


25




CONCURRING & DISSENTING OPINION BY KENNARD, J.
I concur in part I of the majority opinion. There, the majority correctly
holds that the statutory immunity conferred on public entities for an injury
occurring during a “hazardous recreational activity” (Gov. Code, § 831.7) does not
apply to injuries in intercollegiate baseball games.
I do not, however, join part II of the majority opinion. There, the majority
holds that a baseball pitcher owes no duty to refrain from intentionally throwing a
baseball at an opposing player’s head. This is a startling conclusion. It is contrary
to the official view in the sport that such conduct “should be – and is – condemned
by everybody.” (Off. Rules of Major League Baseball, rule 8.02(d), off. coms.)
Central to the majority’s holding is its reliance on the legal rule that there is
no duty to avoid risks “inherent” in a recreational sport.1 This rule had its
inception in this court’s plurality opinion in Knight v. Jewett (1992) 3 Cal.4th 296,
and it was later embraced by a majority of this court in Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990. Unlike good wine, this rule has not
improved with age. I have repeatedly voiced my disagreement with this court’s
adoption of that rule, which is “tearing at the fabric of tort law” (Cheong v.
Antablin, supra, 16 Cal.4th at p. 1075 (conc. opn. of Kennard, J.)); see also Kahn
v. East Side Union High School Dist., supra, 31 Cal.4th at pp. 1021-1022 (conc. &
dis. opn. of Kennard, J.), because it “distort[s] the negligence concept of due care
to encompass reckless and intentional conduct.” (Cheong, supra, at p. 1075 (conc.
opn. of Kennard, J.).) Moreover, because the question of what is “inherent” in a

1
In this opinion, I frequently refer to that rule as the no-duty-for-sports rule.
1



sport is amorphous and fact-intensive, it is impossible for trial courts “to discern,
at an early stage in the proceedings, which risks are inherent in a given sport.”
(Knight v. Jewett, supra, 3 Cal.4th at p. 337 (dis. opn. of Kennard, J.).) As
explained below, this case illustrates that the no-duty-for-sports rule is unworkable
and unfair.2
I
Citrus Community College hosted a team from Rio Hondo Community
College to compete in a baseball game. (Both schools are located in Southern
California.) Because this was a preseason practice game, there was no umpire.
Shortly after the Rio Hondo pitcher hit a Citrus player with a pitched ball, the
Citrus pitcher, allegedly in retaliation, hit Rio Hondo player Jose Luis Avila in the
head with a pitch. Avila suffered unspecified injuries.
Avila sued the Citrus Community College District (the District) and other
parties not relevant here, alleging causes of action for general negligence,
premises liability, products liability, and intentional tort. As pertinent here, Avila
asserted the District was liable for (1) conducting an illegal preseason game in

2
Similar criticisms have appeared in scholarly journals. (See, e.g.,
Comment, Looking Beyond the Name of the Game: A Framework for Analyzing
Recreational Sports Injury Cases
(2001) 34 U.C. Davis L.Rev. 1029, 1061 [“The
Knight decision sets an unreasonable standard of care for recreational sports injury
cases that violates public policy.”]; Fore! American Golf Corporation v. Superior
Court: The Continued Uneven Application of California’s Flawed Doctrine of
Assumption of Risk
(2001) 29 Western St. U. L.Rev. 125, 145-146 [“Knight’s
vague guidelines regarding duty analysis” are “a flawed conceptualization of the
doctrine of assumption of risk” that have “produced uneven results.”]; Sugarman,
Judges as Tort Law Un-Makers: Recent California Experience with “New” Torts
(1999) 49 DePaul L.Rev. 455, 485 [expressing “disagreement with the policy
judgment that recreational injuries are an appropriate place for such a ‘no duty’
rule.”].)
2



violation of community college rules, (2) failing to supervise and control the
Citrus pitcher, (3) failing to provide umpires or other supervisory personnel to
prevent reckless and retaliatory pitching, and (4) failing to summon medical care
after Avila was hurt.3
The District demurred. Curiously, it made no mention of the no-duty-for-
sports rule. Rather, the District asserted that it was not liable under Government
Code section 831.7, which immunizes public entities from liability for an injury
occurring during a “hazardous recreational activity,” and that plaintiff Avila could
not assert a claim for premises liability because he had not alleged that the
conditions of the baseball field played any role in the injury. The trial court
sustained the District’s demurrer without granting Avila leave to amend his initial
complaint, but the Court of Appeal reversed. This court granted the District’s
petition for review.
II
The first, third, and fourth of the legal theories alleged in Avila’s complaint
can be disposed of without resort to the no-duty-for-sports rule.
Avila’s first theory of liability (that the District conducted an illegal
preseason game) fails because, as the majority explains, the District did not breach
any duty to Avila by conducting the game, irrespective of whether community
college rules permitted it to be played. Avila’s third theory (that the District failed
to provide umpires) must be rejected because baseball games are often played
without umpires, and there is no reason to impose on community colleges a duty

3
Avila’s complaint actually listed eight separate allegations, but the majority
has consolidated and renumbered the allegations. (Maj. opn., ante, at p. 17.) For
the sake of clarity, I have adopted the majority’s numbering system.
3



to provide them. (See generally Rowland v. Christian (1968) 69 Cal.2d 108.) And
Avila’s fourth theory (that the District failed to provide medical care) fails
because, as the majority points out, the District had no duty to provide medical
care when Avila’s team came equipped with its own trainers, who were present to
treat his injuries.
Avila’s second theory of liability (that the District failed to supervise and
control the Citrus pitcher) presents a more difficult question. As the majority
notes, colleges “ordinarily are not vicariously liable for the actions of their
student-athletes during competition.” (Maj. opn., ante, at p. 22.) Although Avila
now argues that the District would be liable if its coaches ordered or allowed a
retaliatory pitch aimed at Avila’s head, his complaint does not expressly allege
that they did so. Thus, his failure to do so justifies the trial court’s decision to
sustain the District’s demurrer. But the trial court should have given Avila at least
one opportunity to amend his original complaint to include such an allegation.
(See generally 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 944, p. 402
[“An amendment should be allowed where the defect, though one of substance,
may possibly be cured by supplying omitted allegations, and the plaintiff has not
had a fair opportunity to do so, as where the demurrer was sustained to his first
complaint.”].)
The majority, however, upholds the trial court’s sustaining of the District’s
demurrer without leave to amend. Relying on the no-duty-for-sports rule, the
majority, in essence, concludes that even if the District’s coaches had ordered the
Citrus pitcher to hit Avila in the head with a pitched ball, the District is not liable
for Avila’s injuries because the risk that a batter will be injured by a pitch
intentionally thrown at his head is “an inherent risk of the sport.” (Maj. opn., ante,
at p. 18.) According to the majority, “[s]ome of the most respected baseball
managers and pitchers have openly discussed the fundamental place [that]
4

throwing at batters has in their sport.” (Ibid.) The majority acknowledges that
those comments were made in the context of professional baseball. The majority
then proceeds to hold that throwing at batters is a risk as inherent in college
baseball as it is in professional baseball. My concerns are threefold.
First, the determination whether being hit by a pitched ball intentionally
aimed at one’s head is an inherent risk of baseball, whether professional or
intercollegiate, is a question of fact to be determined in the trial court. “It has long
been the general rule and understanding that ‘an appeal reviews the correctness of
a judgment as of the time of its rendition, upon a record of matters which were
before the trial court for its consideration.’ [Citation.] This rule reflects an
‘essential distinction between the trial and the appellate court . . . that it is the
province of the trial court to decide questions of fact and of the appellate court to
decide questions of law . . . .’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 405, italics
added.) Here, the trial court never heard, and thus never considered, the
comments from professional baseball managers and pitchers on which the majority
relies; indeed, not only did the District offer no evidence on this issue, but the
District did not even argue that Avila’s complaint was barred by the no-duty-for-
sports rule. Undeterred, the majority has done its own research and made its own
factual findings on this issue, thus invading the province of the trial court.
I recognize that this court must take judicial notice of “[f]acts and
propositions of generalized knowledge that are so universally known that they
cannot reasonably be the subject of dispute.” (Evid. Code, § 451, subd. (f); see
also Evid. Code, § 452, subd. (h) [court may take judicial notice of “[f]acts and
propositions that are not reasonably subject to dispute and are capable of
immediate and accurate determination by resort to sources of reasonably
indisputable accuracy.”].) But the majority’s assertion that intentionally throwing
a ball at a batter’s head is inherent in intercollegiate baseball is not a fact so
5

“universally known” that it “cannot reasonably be the subject of dispute.” (Evid.
Code, § 451, subd. (f).)
Had Avila been given the opportunity in the trial court, he might well have
called expert witnesses who could have refuted the majority’s factual
determination that aiming at a batter’s head is inherent in professional baseball.
And he could have pointed to the official comments accompanying Major League
Baseball’s Rule 8.02(d), which prohibits pitchers from trying to hit the batter: “To
pitch at a batter’s head is unsportsmanlike and highly dangerous. It should be—
and is—condemned by everybody. Umpires should act without hesitation in
enforcement of this rule.” (Off. Rules of Major League Baseball, rule 8.02(d), off.
coms.)
Alternatively, Avila could have called expert witnesses to refute the
majority’s finding, which is unsupported by any citation of authority, that the
conduct in question is as inherent in intercollegiate baseball as it is in professional
baseball. And he could have pointed out that, unlike the rules of professional
baseball, the rules of the National Collegiate Athletic Association provide that a
pitcher who intentionally throws at a batter is not only ejected from the game in
which the pitch was thrown, but is also suspended for the team’s next four games,
and a pitcher who intentionally throws at a batter on three occasions must be
suspended for the remainder of the season. (Nat. Collegiate Athletic Assn.,
NCAA Baseball Rules (Dec. 2005) rule 5, § 16(d).)
I turn to my second concern. This matter is here after an appeal from the
trial court’s order sustaining a demurrer. A demurrer “tests the pleading alone,
and . . . lies only where the defects appear on the face of the pleading.” (5 Witkin,
Cal. Procedure, supra, Pleading, § 900, p. 358.) It raises only questions of law.
(Id. at p. 357.) But by relying on the no-duty-for-sports rule to hold that the
District’s demurrer was properly sustained, the majority imposes on trial courts the
6

obligation to decide – in ruling on a demurrer – a question of fact: that is, whether
a particular sports injury arises from an activity inherent in the game. Questions
of fact cannot be decided on demurrer, however; they must be decided on
summary judgment or at trial. Thus, the no-duty-for-sports rule is unworkable
because it forces trial courts to decide questions of fact at the demurrer stage when
the only method available to them is suitable only for deciding questions of law.
My third concern is that the majority’s application of the no-duty-for-sports
rule to include pitches intentionally thrown at a batter’s head is an ill-conceived
expansion of that rule into intentional torts. In Knight, the plaintiff alleged only
that the defendant acted negligently (Knight v. Jewett, supra, 3 Cal.4th at p. 318),
and the plurality there justified the no-duty-for-sports rule with the comment that a
baseball player should not be held liable “for an injury resulting from a carelessly
thrown ball or bat during a baseball game” (ibid., italics added). Here, however,
the majority applies that rule to hold that the trial court properly sustained the
District’s demurrer to Avila’s cause of action alleging an intentional tort, in which
he alleged that the pitch that hit him “was thrown in a deliberate retaliatory
fashion, with reckless disregard for the safety of plaintiff.” Even if I were to
accept the majority’s misguided no-duty-for-sports rule, I would apply it only to
causes of action for negligence, not for intentional torts.
I would analyze Avila’s claim under the traditional doctrine of assumption
of risk. Under that doctrine, the pertinent inquiry is not what risk is inherent in a
particular sport; rather, it is what risk the plaintiff consciously and voluntarily
assumed. That issue, as I explained earlier, is not one involving a duty of care
owed to another, to be resolved on demurrer; rather, it is an affirmative defense, to
be resolved on summary judgment or at trial.
Under traditional assumption-of-risk analysis, “sports participants owe each
other a duty to refrain from unreasonably risky conduct that may cause harm.”
7

(Comment, Looking Beyond the Name of the Game: A Framework for Analyzing
Recreational Sports Injury Cases, supra, 34 U.C. Davis L.Rev. at p. 1060.)
Intentionally hitting another person in the head with a hard object thrown at a high
speed is highly dangerous and is potentially tortious, no matter whether the object
is a ball thrown on a baseball field or is a rock thrown on a city street. Thus, if the
District here was complicit in a decision by the pitcher to hit Avila in the head
with the baseball, it may be held liable for Avila’s injuries if Avila did not assume
the risk that the pitcher would hit him in this manner. But, as I explained earlier,
Avila has thus far not alleged that coaches employed by the District either advised
or condoned any such act. Thus, the trial court properly sustained the District’s
demurrer; but Avila should be given leave to amend his original complaint to
allege that the District was legally responsible for the pitcher’s decision to aim the
baseball at Avila’s head.
If Avila were to amend his complaint to allege the District’s complicity in
the pitcher’s decision to hit him in the head with the baseball, the District should
be permitted to deny liability on the ground that Avila assumed the risk of an
intentional hit in the head during the game: that is, he “voluntarily accepted [that]
risk with knowledge and appreciation of that risk.” (Knight v. Jewett, supra, 3
Cal.4th at p. 326 (dis. opn. of Kennard, J.).) Whether Avila assumed that risk is a
question of fact that has no bearing on the District’s duty of care toward Avila.
Therefore, it cannot be decided on demurrer, but should be decided on a motion
for summary judgment or at trial.
I would remand the matter to the Court of Appeal, and have that court
direct the trial court to sustain Avila’s demurrer with leave to amend the original
complaint.
KENNARD,
J.
8

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Avila v. Citrus Community College District
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 111 Cal.App.4th 811
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S119575
Date Filed: April 6, 2006
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Conrad Richard Aragon

__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Alan E. Wisotsky and Brian P. Keighron for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Gibeaut, Mahan & Brisco, Gary Robert Gibeaut, John W. Allen and Lisa J. Brown for Defendant and
Respondent.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Brian P. Keighron
Law Offices of Alan E. Wisotsky
300 Esplanade Dr., #1500
Oxnard, CA 93030
(805) 278-0920

Lisa J. Brown
Gibeaut, Mahan & Briscoe
6701 Center Drive W. #611
Los Angeles, CA 90045
(310) 410-2020


Opinion Information
Date:Citation:Docket Number:
Thu, 04/06/200638 Cal. 4th 148, 131 P.3d 383, 41 Cal. Rptr. 3d 299S119575

Parties
1Citrus Community College District (Defendant and Respondent)
Represented by John W. Allen
Gibeaut Mahan & Briscoe
6701 Center Drive West, Suite 611
Los Angeles, CA

2Citrus Community College District (Defendant and Respondent)
Represented by Lisa Jean Brown
Gibeaut Mahan & Briscoe
6701 Center Drive West, Suite 611
Los Angeles, CA

3Citrus Community College District (Defendant and Respondent)
Represented by Gary Robert Gibeaut
Gibeaut Mahan & Briscoe
6701 Center Drive West, Suite 611
Los Angeles, CA

4Avila, Jose Luis (Plaintiff and Appellant)
Represented by Brian P. Keighron
Law Offices of Alan E. Wisotsky
300 Esplanade Drive, Suite 1500
Oxnard, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar

Disposition
Apr 6 2006Opinion: Reversed

Dockets
Oct 6 2003Petition for review filed
  respondent, Citrus Community College District
Oct 8 2003Record requested
 
Oct 8 2003Received Court of Appeal record
  one doghouse.
Oct 17 2003Received:
  declaration of Judy Goatham re: Proof of Service of petition for review and request to depublish by defendant and respondent, Citrus Community College District.
Oct 22 2003Answer to petition for review filed
  By counsel for appellant {Jose Luis Avila}.
Nov 25 2003Time extended to grant or deny review
  To January 2, 2004.
Dec 10 2003Petition for Review Granted (civil case)
  Votes: George, C.J., Baxter, Werdegar, Chin, and Brown, JJ.
Dec 10 2003Letter sent to:
  Parties regarding Certification of Interested Entities or Persons.
Dec 19 2003Certification of interested entities or persons filed
  counsel for respondent, John W. Allen
Dec 22 2003Certification of interested entities or persons filed
  By appellant {Jose Luis Avila}.
Jan 9 2004Opening brief on the merits filed
  respondent Citrus Community College Dsitrict
Feb 6 2004Answer brief on the merits filed
  By appellant {Jose Luis Avila}.
Feb 25 2004Reply brief filed (case fully briefed)
  by respondent Citrus Community College District
Dec 14 2005Case ordered on calendar
  January 10, 2006, 1:30 p.m., in San Francisco
Jan 10 2006Filed:
  stipulation of counsel regarding Justice Chin's participation in the case.
Jan 10 2006Cause argued and submitted
 
Apr 6 2006Opinion filed: Judgment reversed
  Majority opinion by Werdegar, J. ----------joined by George, C.J., Baxter, Chin, Moreno, Corrigan, JJ. C&D opinion by Kennard, J.
May 9 2006Remittitur issued (civil case)
 
May 15 2006Received:
  receipt for remittur from 2 DCA.

Briefs
Jan 9 2004Opening brief on the merits filed
 
Feb 6 2004Answer brief on the merits filed
 
Feb 25 2004Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 30, 2011
Annotated by rob poulsen

Justice Werdegar - delivered the opinion of the Court
Justice Kennard - delivered a concurring and dissenting opinion to the Court

Facts
Jose Avila played baseball for Rio Hondo Community College. During a preseason game against Citrus Community College, a Rio Hondo pitcher hit a Citrus player with pitch. At the beginning of the next inning, Avila was struck in the head by a pitch thrown by the Citrus pitcher. The impact cracked his helmet. Avila alleges he was hit intentionally as retaliation, or at minimum that the pitch was thrown negligently.

Although Avila disoriented and in pain the manager told him to take his base. Avila did so and then complained to the first base coach, who told him to stay in the game. At second base, Avila still felt pain, numbness, and dizziness when a Citrus player notified the Rio Hondo coach that a pinch runner was needed. Avila walked to the dugout where no one attended to his injuries. This resulted in Avila suffering serious injuries.

Avila sued multiple parties including “both schools, his manager, the helmet manufacturer, and various other entities and organizations.” This case only refers to the claim against Citrus Community College District.

Avila alleged the district was negligent for a long list of failings. These are, first, failing to supervise and control the opposing pitcher, second, failing to summon or provide medical care, third, failing to provide umpires or other supervisory personnel to control the game and prevent retaliation, fourth, failing to provide adequate equipment to protect against head injury, and fifth, failing to reasonably train and supervise managers, trainers, employees, and agents in providing medical care. Finally, Avila alleged that the game was conducted illegally as a preseason game.

Procedural History
The plaintiff, Jose Luis Avila, sued the defendant, rival Citrus Community College, for negligence. The defendant demurred and a trial court sustained the demurrer. The California Court of Appeal, Second Appellate District, Division Five, reversed the trial court’s judgement. The community college petitioned for review.

Issues
Question 1: “Does Government Code section 831.7, which immunizes public entities from liability for injuries sustained during “hazardous recreational activities,” bar recovery against the home community college district[?]”

Question 2: “[D]oes the community college district owe any duty to visiting players that might support liability?”

Holding
The California Supreme Court reversed the Court of Appeals judgement. The Court concluded first, “...that section 831.7 does not extend to injuries sustained during supervised school sports...” and second, “...that on the facts alleged the host school breached no duty of care to the injured batter.”

Analysis
Question 1 - Section 831.7 Immunity
The Court undertakes an analysis of the meaning of section 831.7. After acknowledging the ambiguity of the section regarding the definition of “recreational” and “hazardous,” it determines that not only the nature of the activity matters, but more importantly, the context matters as well. The Court reviews three key related court of appeals decisions, Acosta, Iverson, and Ochoa. Acosta found that no immunity applied when a high school gymnast was injured during practice because section 831.7 does not immunize schools from liability for negligent supervision and reasoned that the term recreational excludes supervised school-sponsored extracurricular activities. Next, Iverson rejected section 831.7 immunity when an eight-grader was injured during physical education class. Although it relied on similar reasoning as Acosta, Iverson distinguished itself from Acosta since it did not involve an extracurricular activity. Finally, Ochoa granted section 831.7 immunity to Sacramento State when a student was injured in a fist fight during an intramural soccer game. The court distinguished Acosta and Iverson because they did not involve adults voluntarily participating in what it deemed a hazardous recreational activity. The Court agrees with Acosta and Iverson in this case.

The Court then looks to legislative intent to determine section 831.7’s meaning. Because the statute was modeled on Civil Code section 846, the Court concludes section 831.7 was “...designed to limit liability based on a public entity’s failure either to maintain public property or to warn of dangerous conditions on public property.” The Court finds no evidence that it was designed to limit other duties of public entities. Apart from section 831.7, public schools and universities still have certain legal obligations involving their students - A duty to supervise that extends to athletic activities. However this duty does not apply equally to all students. Schools owe a special duty to their athletes when conducting practices and games. The Court resolves these tensions by determining that “...school-sponsored and supervised sports activities are not “recreational” in the sense intended by the statute...” and therefore section 831.7 does not immunize schools in these circumstances.

Question 2 - Duty of Care Owed College Athletes
The Court reiterates the common law standard of tort liability requiring a breach of a duty of care owed in order to recover for negligence. The legislature has extended this to public employees, and has extended public employee liability to public entity defendants. When a case involves risk from a sporting activity, the question of duty mixes with the question of assumption of risk. In California, due to a comparative negligence standard, assumption of risk has been split into primary and secondary categories. Primary assumption of risk occurs when a defendant owes no duty to protect a plaintiff from particular harm. In sports, this would mean a preclusion of liability for risks inherent to sport. In this case, the Court determines the host school and its agents have a duty not to increase the inherent risk of the sport and that participants have a duty to not to act recklessly.

The Court determines, first, the school is not liable due to hosting the game because this did not increase inherent risks, second, the claim of failing to control the pitcher is barred by assumption of risk as it is part of the game (that violating a rule of baseball does not impose a legal liability), third, not providing umpires did not increase the inherent risks of the game (though it may decrease risk, this is not a legal duty), and fourth, that the defendant did not breach a duty by failing to provide medical care for Avila.

Concurrence and Dissent
The minority concurs with the section 831.7 analysis but disapproves of the assumption of risk analysis, specifically regarding Avila’s second claim (failing to control the pitcher).

Tags
assumption of risk, immunity, tort, liability, sport injury, school sponsored, educational institution, baseball, pitcher, struck, intentional, hazardous recreation, public entity, student-athlete, coach, team, no-duty-for-sports

Key Related Cases
Opinion relied on by the District Court:

Ochoa v. California State University - 72 Cal.App.4th 1300
http://scholar.google.com/scholar_case?q=72+Cal.App.4th+1300&hl=en&as_sd...

Opinion relied on by the divided Court of Appeals:

Acosta v. Los Angeles Unified School Dist. - 31Cal.App.4th
http://scholar.google.com/scholar_case?q=31+Cal.App.4th+471&hl=en&as_sdt...

Iverson v. Muroc Unified School Dist. - 32 Cal.App.4th 218
http://scholar.google.com/scholar_case?q=32+Cal.App.4th+218&hl=en&as_sdt...