California Court of Appeals, Second District, Fifth Division
APPEAL from a judgment of the Superior Court of Los Angeles County No. LC094333, Russell Steven Kussman, Judge.
Law Offices of Gary A. Dordick, Gary A. Dordick and Mark J. Bloom for Plaintiff and Appellant.
Horvitz & Levy, Karen M. Bray, Emily V. Cuatto; Gates, O’Doherty, Gonter & Guy and Peter J. Gates for Defendant and Respondent.
Plaintiff and appellant Scarlet Cann was injured by a weight dropped by defendant and respondent Annie Stefanec, her teammate on the UCLA swim team, during a mandatory team workout session intended to strengthen the swimmers. Cann filed an action alleging negligence against Stefanec. Stefanec successfully moved for summary judgment on the basis of the doctrine of primary assumption of the risk. Cann argues primary assumption of the risk does not apply under the circumstances of this case. We affirm.
The Motion for Summary Judgment
Stefanec’s motion for summary judgment relied on the following undisputed facts. Cann and Stefanec were members of the UCLA women’s swim team on February 4, 2010. The team lifted weights twice a week in the weight room for the purpose of improving strength to help in competitive swimming. The weight room had numerous platforms elevated one to two inches off the ground, with a weight rack on each platform. Team members were performing a circuit of three exercises, including “step-ups, ” pushups, and use of a “glut/ham machine.”
Stefanec was performing step-ups on the platform with her back to the weight rack, while Cann was nearby doing pushups. Stefanec had a weight bar containing two five-kilogram plates on her shoulders while doing the step-ups. Stefanec lost her balance and began to fall backward. Stefanec dropped the weight bar behind her and fell backward onto the bar, fracturing a vertebrae in her back.
According to another member of the swim team, the weight bar rolled less than two feet and a weight plate came in contact with Cann’s head, as Cann was performing pushups behind Stefanec. Cann estimated she was four or five feet from the bench where Stefanec was performing the step-ups, and she was two to three feet away when Stefanec fell. Cann does not know what part of the weight bar or weight plates hit her.
Cann, Stefanec, and two other swim team members testified in deposition that swimmers were instructed by a coach to drop the weight bar if the weight was too heavy or the lifter lost her balance. Cann had observed UCLA team members drop weights prior to this incident. Cann had dropped weights before this incident when “maxing out.”
Cann’s Opposition to the Motion for Summary Judgment
Cann argued that she did not assume the risk that Stefanec, or anyone else, would drop a weight on her head. Her mere presence in a gym did not assume all risks of negligent conduct by others. Even if assumption of the risk was applicable, this case falls outside of the doctrine because a jury could find that Stefanec acted recklessly by lifting weights within inches of Cann’s head.
Cann’s presence in the weight room was required by her coach. She was doing pushups, not lifting weights, when injured. Cann and Stefanec were not competing and were not coparticipants in a sport. They were engaged in two different and distinct activities. Pushups do not involve the risk of injury from heavy weights. The weight fell directly onto ...