Avila v. Citrus College 8/27/03 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B158572

Case Date: 08/27/2003

Preview:Filed 8/27/03

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE JOSE LUIS AVILA, Plaintiff and Appellant, v. CITRUS COMMUNITY COLLEGE DISTRICT, Defendant and Respondent. B158572 (Los Angeles County Super. Ct. No. KC037803)

APPEAL from a judgment of the Superior Court of Los Angeles County. Conrad R. Aragon, Judge. Reversed. Law Offices of Alan E. Wisotsky and Brian P. Keighron for Plaintiff and Appellant. Gibeaut, Mahan & Brisco, Gary Robert Gibeaut and John W. Allen for Defendant and Respondent.

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Appellant Jose Luis Avila was a student at Rio Hondo Community College and played on that college's baseball team. On January 5, 2001, during a game against the Citrus Community College District, he was hit in the head with a pitch. He sued for negligence, naming as defendants the Rio Hondo Community College District, respondent Citrus Community College District, and others. Citrus College demurred, contending that it was immune from suit under Government Code section 831.7 on recreational immunity and that it had no duty to supervise appellant or any other student playing in the game. The trial court sustained the demurrer on both grounds without leave to amend and dismissed the case. We reverse. Discussion
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On the day of the incident, appellant was 19 years old, a student at Rio Hondo Community College, and a player on that College's baseball team. On that date, he played in a game against Citrus College, at the Citrus College field. He was hit in the head with a Citrus College pitch which was thrown with such force that it cracked his helmet. He alleged, inter alia, that the pitch was thrown in a deliberate attempt to retaliate for a Rio Hondo pitch which hit a Citrus College player. Appellant staggered, felt dizzy, and felt pain. The Citrus College coaching staff did not tend to him or summon medical care. The Rio Hondo coach told appellant to go to first base. He did so, and when he complained to the first base coach he was told to stay in the game. At second base, he still felt pain, numbness, and dizziness. A Citrus

Appellant also sued respondent for premises liability, but has abandoned that cause of action.
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All further statutory references are to that code.

In accord with the well-known rules of review, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context, and treat the demurrer as admitting all material facts properly pleaded. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) 2

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player yelled to the Rio Hondo dugout that Rio Hondo needed a new runner. Appellant walked off the field and went to the Rio Hondo bench. His injuries were not tended to. Appellant alleged that Citrus College was negligent in that it failed to summon or provide medical care for him when he was obviously in need of medical care, failed to supervise and control the Citrus College pitcher and the game, failed to provide umpires or other supervisory personnel to control the game and prevent retaliatory or reckless pitching, and failed to provide adequate equipment to safeguard him from serious head injury. Finally, appellant alleged that Citrus College acted negligently by failing to take reasonable steps to train and supervise managers, trainers, employees and agents in providing medical care to injured baseball players and by conducting an illegal preseason practice game in violation of community college baseball rules designed to protect participants such as appellant. In its demurrer, Citrus College contended that it was protected by section 831.7, subdivision (a), which provides that "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." "Hazardous recreational activity" is defined in the statute. It means "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." (

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