How can Primary Assumption of the Risk apply when there are multiple Defendants, with one Defendant acting intentionally to hurt Plaintiff? Nigel B. v. Burbank Unified School District

By Eric Ganci

In California, we have types of primary assumption of the risk: Primary and Secondary.  

I’ll deal with Secondary Assumption of the Risk first, which is when Defendant still owes a duty of care, but Plaintiff knowingly encounters the risks attendant on Defendant’s breach of duty. 

Now, focusing on Primary Assumption of the Risk: the California Court of Appeal recently decided the case Nigel B. v. Burbank Unified School District (cited as 2023 WL 4308622) on this issue. And specifically with the issue of when you have multiple Defendants and one Defendant acted intentionally to hurt Plaintiff.  

Let’s start with what happened in Nigel B.:  

Plaintiff here was an 8th grader at John Muir Middle School. Which I’ll just call The School.  

The assault happens in the PE teacher’s “mandatory eighth-grade advanced physical education class…” where students “could not opt out of a particular sport.”  The “plaintiff’s participation in the physical education class was not voluntary on his part, but rather was required by the middle school’s curriculum.”  

How did this PE teacher…um, supervise…his class? Per this case, his “supervision of the class was ‘passive.’ He frequently used his cell phone during class to text, make calls, and access Facebook.” And “’pretty much any time we played any sport, [the PE Teacher] was off on the side in the shade on his phone.’” 

Next, let me introduce The Bully, who was about 40 pounds heavier than Plaintiff, and about 9 inches taller.  

And Plaintiff? 70 pounds.  

The Bully would pick on Plaintiff in many ways, both verbal and physical. But it wasn’t just Bully that did this to Plaintiff. It was other students too, as “[s]tudents in [the PE Teacher’s] class routinely engaged in roughhousing and often directed ‘pushing, hitting, slapping, and the like’ at plaintiff.”   

What happened at the Incident?  

All students are playing mandatory touch football.  

“On the play at issue, plaintiff caught a pass and [The Bully] ran into him at full speed, causing plaintiff to fly several feet in the air and land on his left side.”  

“Plaintiff—who had suffered a tear in his anterior cruciate ligament—screamed in pain as he held his left knee. [The Bully] laughed in response, called plaintiff a ‘baby,’ and claimed that plaintiff was ‘faking it.’” 

Plaintiff filed suit against The School, the PE Teacher, and The Bully (and his parents).  

Diving into the legal stuff:  

The case goes to trial. And at the end of the trial, the Parties submit a special verdict form. And “[b]ecause the parties had submitted conflicting special verdict forms, the trial court drafted its own proposed special verdict form.”  

On the verdict form where these questions:  

“Did [the District] fail to carry out a mandatory duty?” The Jury answered yes.  

“Was [the PE Teacher] negligent?” The Jury answered yes.  

“Was the negligence or failure to carry out a mandatory duty a substantial factor in causing harm to [plaintiff]?” The Jury answered yes.  

Then on to the question at issue, Question Four. “Question number four asked the jury, ‘Did [The Bully]… act towards [plaintiff] on April 17, 2018 in the touch football game in a manner that was negligent or intentional?’ The form then instructed the jury that it should only proceed to apportion fault between [the Bully] and defendants if it concluded that [The Bully] had acted negligently.”  

The Jury answered The Bully intentionally injured Plaintiff, which meant the Jury then did not apportion any fault between The School and The Bully. And this is the part The School takes issue with.  

Ok, a quick step back:  

What is Primary Assumption of the Risk, per California law?  

Here is the general law:  

“Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others…some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.’ …The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. …Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.”  

What have the Courts in California held about this, especially in school settings?  

Courts have applied the primary assumption of risk doctrine to a range of school activities including extracurricular programs, such as:  

• mandatory weight lifting session for members of college swim team 
• after-school wrestling program; and 
• cheerleading practice.  

And also elective classes, such as another case when the “plaintiff enrolled in advanced football class.” 

So again, when can the Primary Assumption of the Risk doctrine apply? The Court says this:  

“Primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the plaintiff is injured due to a risk that is inherent in an activity in which the plaintiff chose to participate” 

“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks.” 

What did the Court decide?  

The first question: does Primary Assumption of the Risk apply here, when Plaintiff’s participation was mandatory? The Court says no, saying this: “[w]e decline to extend the application of the doctrine to a sports activity that is, as here, part of a mandatory physical education class.” 

However, to the Special Verdict Form which instructed the jury that it should only proceed to apportion fault between [The Bully] and defendants if it concluded that [The Bully] had acted negligently…the Court held the Trial Court should have drafted the verdict form to allow for allocation of fault to The Bully (and not just The School) even if the Jury found The Bully acted intentionally rather than negligently.  

The Court’s exact words are this: “We agree with defendants that the jury should have been directed to apportion fault to Gianni even if it concluded—as it ultimately did—that Gianni acted intentionally rather than negligently.” 

This Court directs the Trial Court “to hold a retrial limited to apportionment of fault between [the PE Teacher] and [The Bully] as to the noneconomic damages found by the jury on the negligence claim against [The Teacher].”