Metropolitan News-Enterprise


Thursday, June 13, 2002


Page 3


S.C. to Decide Whether School May Be Liable for Student Athlete’s Injury


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to take yet another step into the legal thicket of assumption of risk, accepting review of a lower court ruling that a swim team member cannot recover damages for serious injuries she sustained attempting to dive during practice.

All of the justices except Marvin Baxter voted to grant the plaintiff’s petition in Kahn v. East Side Union High School Dist. 96 Cal.App.4th 781.

Olivia Kahn was a member of the Mount Pleasant High School swim team at the time of the 1994 accident, which occurred in a shallow racing pool. Kahn, an experienced swimmer, contends that her coach coaxed her to overcome her fear of diving into a shallow pool and insisted she attempt a dive beyond her capabilities.

A Santa Clara Superior Court judge threw out the suit, saying the injury was an inherent risk of the sport, giving the district a complete defense under the primary assumption of the risk doctrine, as explicated in Knight v. Jewett (1992) 3 Cal.4th 296, 313.

The Court of Appeal, with Justice William Wunderlich writing for a divided panel, agreed. But Monterey Superior Court Judge Robert O’Farrell, sitting on assignment, dissented.

O’Farrell said that if Kahn’s allegations about her lack of diving skill and experience and her coach’s knowledge of those limitations are true, the district increased the risk beyond that inherent in the sport. In that case, he said, the plaintiff’s assumption of the risk is considered secondary rather than primary and comparative negligence principles apply under the Knight line of cases.

In another action at yesterday’s conference, the court rejected an attempt to revive a lawsuit by developers who sued their lawyers after their plan for a mixed-use downtown development was nixed by Los Angeles officials.

Only Justices Joyce L. Kennard and Kathryn M. Werdegar voted to hear the appeal of First Street Plaza Partners and the other would-be developers of the First Street Project from a judgment dismissing their suit against Cox, Castle & Nicholson, LLP and LeBoeuf, Lamb, Greene & MacRae, LLP.

The decision not to hear the case leaves standing a March 26 ruling by Div. Five of this district’s Court of Appeal that the plaintiffs waited too long to sue. Presiding Justice Paul A. Turner authored the unpublished opinion in FSPP Limited Partnership v. LeBoeuf, Lamb, Greene & McRae, B146610.

The developers sued the law firms in December 1997, months after a Los Angeles Superior Court judge dismissed their $26 million law suit against the city for abandoning the project. The mixed-use development, including a city office building, would have been built near Alameda and First streets.

 The project was envisioned in the 1980s, before the crash of the Southern California real estate market. A contract was negotiated, but never formally signed, and the city’s view of the project changed after the election of Richard Riordan as mayor in 1993. The council voted in 1994 not to go ahead with the deal.

 The developers’ suit against the city was dismissed, in part, based on failure to comply with City Charter Sec. 385, setting forth technical requirements that must be complied with before a contract is binding on the city.

 In suing their former lawyers, the developers claimed that the lawyers were negligent in failing to advise them that they did not have a binding contract with the city and in not taking steps to create a contract.

 They further claimed that the Cox firm was negligent in advising them to pursue unwinnable litigation and not advising them of the requirements of Sec. 385.

 While the suit was pending, the Supreme Court decided Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739. The case holds that the one-year limitations period in legal malpractice action begins to run when the client suffers “actual injury” as a result of its lawyers’ negligence, even if the underlying litigation has not been concluded.

 Based on that ruling, Los Angeles Superior Court Judge Kurt Lewin, who has since retired, held that the developers’ suits against the law firms were time-barred. Turner wrote for the Court of Appeal that the trial judge was correct in applying the Supreme Court ruling retroactively.

The general rule, Turner explained, is that appellate rulings apply to all cases pending in the trial courts. The recognized exceptions—when retroactive application would be unfair or contrary to public policy—are narrow and do not apply, the jurist said.

 In other actions taken at the conference, the justices:

Agreed to decide whether an intoxicated person, who had been allowed by city jailers to “sleep…off” his drunkenness before being released, was a “prisoner” for purposes of a statute that would have given the city  immunity from liability for injuries sustained in a subsequent attack by another inmate. The Fourth District Court of Appeal held in an unpublished opinion in Teter v. City of Newport Beach, G025239, that the arrestee was not a prisoner and the immunity did not apply.

Agreed to decide whether the Medical Board of California may stay its decision dismissing an accusation and whether it may delegate that authority to a staff member. The Third District Court of Appeal answered yes to both questions in Bonnell v. Medical Bd. of California, 96 Cal.App.4th 654.

Agreed to decide whether a creditor can attack a property distribution pursuant to the debtor’s marital settlement agreement under the Uniform Fraudulent Transfer Act. The Sixth District Court of Appeal, hearing the appeal of a woman attacking her former lover’s transfers to his ex-wife in order to collect child support, held in Mejia v. Reed, 97 Cal.App.4th 277, that UFTA applied.

Granted review of a ruling by Div. Eight of this district’s Court of Appeal that an employee did not necessarily waive her right to sue for emotional distress damages resulting for sexual harassment by settling a related claim for workers’ compensation. Justice Paul Boland authored the unpublished opinion in Claxton v. Waters, B141129.

Agreed to determine the enforceability of a defendant’s waiver, as part of a plea negotiation resulting in probation, of the right to pre-sentence credits for time spent in a residential treatment facility in the event she violated probation and was sentenced to prison. The First District Court of Appeal upheld the waiver in an unpublished opinion in People v. Jeffrey, A095147.

Agreed to consider issues resulting from the interplay of the gang-enhancement and ‘10-20-Life’ laws in People v. Montes, 96 Cal.App.4th 518.


Copyright 2002, Metropolitan News Company