Lawsuit Against a Swimming Instructor in California

In Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, the Court considered the doctrine of assumption of the risk in the context of a lawsuit against a swimming instructor. The court held that a sports instructor breaches a duty of care only "'if the instructor intentionally injures the student or engages in conduct that is reckless in the sense that it is 'totally outside the range of the ordinary activity.'" (Ibid.) The court further found evidence of reckless conduct sufficient to raise a triable issue of material fact where a swim coach required a student to dive into a shallow pool without providing her any training, after promising she would not be required to dive. (Id. at p. 996.) The court specifically relied on the following evidence: "the lack of training in the shallow-water dive disclosed by plaintiff's evidence, especially in the face of the sequences training recommended in the Red Cross manual submitted by plaintiff; the coach's awareness of plaintiff's deep-seated fear of such diving; his conduct in lulling her into a false sense of security through a promise that she would not be required to dive, thereby eliminating any motivation on her part to learn to dive safely; his last-minute breach of that promise under the pressure of a competitive meet; and his threat to remove her from the team or at least the meet if she refused to dive." (Id. at p. 1012.) The Court applied the primary assumption of risk doctrine to a sports instructor, i.e., a swimming coach. The high court acknowledged that the athlete-coach relationship differed from that of coparticipants, but concluded nonetheless that "because a significant part of an instructor's or coach's role is to challenge or 'push' a student or athlete to advance in his or her skill level and to undertake more difficult tasks, and because the fulfillment of such a role could be improperly chilled by too stringent a standard of potential legal liability, ... the same general standard of Knight v. Jewett (1992) 3 Cal.4th 296 should apply in cases in which an instructor's alleged liability rests primarily on a claim that he or she challenged the player to perform beyond his or her capacity or failed to provide adequate instruction or supervision before directing or permitting a student to perform a particular maneuver that has resulted in injury to the student." (Id. at p. 996.) It therefore held that "in order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student's capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student's injury or that the instructor acted recklessly in the sense that the instructor's conduct was 'totally outside the range of the ordinary activity' involved in teaching or coaching the sport." (Id. at p. 1011; see also id. at p. 996.)