California Court Holds Primary Assumption of Risk Bars Negligence Claim in Recreational Swimming Pool Accident Lawsuit Because Swimming Presents Inherent Risk of Drowning and Injury

Recently, the California Court of Appeal reviewed a grant of summary judgment in favor of a community college after a recreational swimming student brought a lawsuit against the college for negligence related to an incident that occurred when he was swimming recreationally at the college pool.  In this opinion, the appellate court found that the facts as presented to the trial court supported a grant of summary judgment in favor of the defendants. The plaintiff assumed the risk of drowning when he chose to swim recreationally, and the swim coach and the lifeguard were not liable.pool liability

Mr. Lee alleged that the District, the swim coach, and the lifeguard were negligent by failing to properly supervisor or monitor Mr. Lee’s swim class, when he nearly drowned.  Asserting the doctrine of primary assumption of risk, the defendants contended that Mr. Lee’s cause of action for negligence could not stand.

Mr. Lee was 19 years old when the incident occurred, and when he enrolled in swim instruction he did not know how to swim.  During class, the coach instructed students in how to swim and float through breathing techniques employed during freestyle swimming.  At the time of the incident, Mr. Lee was allowed to lap swim and enter the deep end of the pool.

Mr. Lee and his friend had been swimming in the deep end of the pool, and they decided to attempt to touch the bottom of the pool by foot. Together, the two men went close to the bottom of the pool, and as his friend rose to the surface, he noticed that Mr. Lee had not sprung to the surface. After going underwater a few more times, he called for help, and the lifeguard pulled Mr. Lee from the water with the help of the swim coach. Mr. Lee was bleeding and unconscious, but after the swim coach gave rescue breaths, Mr. Lee began to breathe. He was taken to the hospital by ambulance and was then discharged. Mr. Lee, at the time of the lawsuit, was living in Stockton with his wife.

Mr. Lee argued that primary assumption of risk did not bar his claim for negligence. Mr. Lee contended that the swim coach and lifeguard did not use reasonable care, and the swim coach was not supervising his students but on his computer.  He also contended that when he went underwater in the deep end, the lifeguard was walking by him, and by the time he reached the surface, he had been underwater for a few minutes. The defendants contended that there was no evidence of reckless conduct by the swim coach or lifeguard that would have increased any risk inherent in the sport of swimming.

The trial court held that primary assumption of risk applies to the sport of swimming, and drowning is an inherent risk in the activity. The court found that the defendants did not increase the risk applied to the activity, nor did they coerce Mr. Lee to try and swim beyond his abilities.  Even if Mr. Lee could assert negligence, he did not put forth facts showing the defendants breached a duty of care they owed him. Mr. Lee appealed.

The court of appeal stated that on review, the facts are reviewed as presented to the trial court. The issue was whether the facts before the trial court supported their finding that primary assumption of risk barred Mr. Lee’s negligence claim.

Regarding participating in sports and the application of primary assumption of risk, the court stated the rule that generally people owe one another a duty of care, but for inherently dangerous activities, there is no duty imposed on participants in and operators of those activities. The policy reason is that imposing a duty would have a chilling effect. The duty owed in an inherently risky sport or activity is to not increase the risk of injury over that inherent level of risk.

Primary assumption of risk applies to both competitive and noncompetitive sports activities. This doctrine includes the notion that for some activities, eliminating the risk alters the fundamental nature of the activity.  The court stated that swimming has inherent risks of drowning and injury, and therefore primary assumption of risk applies to recreational swimming.

The court stated the fundamental nature of being in the water would be altered should the risk of drowning be eliminated.

Here, the court stated that Lee did not present evidence that the defendants increased the risk of swimming for him. Instead, the court of appeal stated his claim against the District was based on the college’s status as the employer of the swim coach and lifeguard. The court stated he had no claim against either the swim coach or lifeguard, and therefore no claim against the District.

Next, the court rejected Mr. Lee’s contention that his claim should be allowed under a negligent undertaking claim. He alleged that the swim coach’s job was to teach students to be safe in the water, and the lifeguard’s job by nature of his role was to protect swimmers.

Negligent undertaking is also known as the “good Samaritan” doctrine, which holds that an individual who undertakes to aid another person has a duty to use due care in doing so, and that person may be liable if a failure to do so leads to harm based on the other’s reliance on the undertaking.  The court stated that in this case, assumption of risk barred the claim of negligence, since the injury flowed directly from the sport in which Mr. Lee had engaged. The court stated that if they allowed the negligent undertaking claim, that would run counter to policy considerations of avoiding chilling vigorous participation in activities by holding certain parties not liable for risks inherent in some activities.

The appellate court affirmed the lower court’s dismissal.

The swimming pool accident attorneys at Sharifi Firm provide guidance and representation to Southern California residents seeking compensation following an accident.  We provide a free, no-obligation consultation and can be reached by calling 866-422-7222.

More Blog Posts:

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California Court Holds Release of Liability at Trampoline Facility was Clear, Unambiguous, and Explicit, Southern California Injury Lawyer Blog, May 9, 2016

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