I am going to respectfully disagree
with the Sixth District Court of Appeal in San Jose on this one. And I say respectfully because I really do
see both sides. This is the matter of
Olivia Kahn vs. Eastside Union High School.
Olivia Kahn is a fourteen-year-old who broke her neck when she dove into
a shallow pool at the urging of her high school swim coach. Young Olivia was on the swim team and had
been in two swim meets; however, before this incident, she had never been
required to dive. Olivia would always
swim the first leg of the relay race, and the first swimmer starts from inside
the pool. In this matter, Olivia’s
coach, Coach McKay, indicates that he had taught Olivia how to dive, while
Olivia claims she had not been so taught.
Olivia says that shortly before her event, she realized she had not been
put as the swimmer of the first leg, and that a dive would be required. She says she told Coach McKay that she
needed to start from inside the pool, that she didn’t know how to dive and was
afraid to dive. She further testified
that she had never dove into the shallow racing pool and was quite scared. Coach McKay allegedly said to her that she
either did the dive or didn’t swim for the team. This conversation took place approximately five minutes before
the race. Olivia decided she would give
it a try and she started to practice diving with help from her teammates. Please note that these were dives off diving
blocks into a three-and-a-half foot deep pool.
Ms. Kahn’s first two practice dives went without incident; however, on
her third dive, she broke her neck.
The question here is can a
fourteen-year-old student sue her high school and her swim team coach when the
coach knew she was afraid of diving yet strongly suggested that she do so into
a shallow pool of water.
The District Court of Appeal ruled
two to one that Olivia assumed the risk of injury in this case. The Court concluded that Olivia was a
voluntary participant and she could have refused to swim.
I’m with the dissenting Justice on
this one, who argued that this case should not have been dismissed at what is
referred to as the “summary judgment” stage, but that the case should have
proceeded to trial. At trial, Olivia
would have had the opportunity to present her claim to a jury as to whether or
not there was negligence with Coach McKay apparently put a great deal of
pressure on her to dive with arguably no training. Olivia further contended that she had previously told Coach McKay
about her concerns, and he had promised she would never have to dive. The question for the jury would have been
whether or not Coach McKay put Olivia in a situation where there was an
unreasonable risk of injury.
The two Justices who voted in the
majority stated that, “In our view, sports instruction would be severely
hampered by a rule imposing liability on coaches or instructors who merely
challenge their students to accomplish more.”
I understand that; however, I think there’s a difference between
challenging a student to accomplish more and putting a student at risk in a
situation in which she is clearly not prepared. The Justice who dissented indicated that the school has a duty of
care to their student swimmers, and a jury ought to decide whether or not the
school is culpable.
It appears as if the plaintiff’s
attorney will ask the Court of Appeal for a re-hearing, or instead, take the
next step, which will be to go up to the California State Supreme Court.
As I said at the beginning, I see where
the school is coming from; however, I don’t think this is the kind of case that
should be thrown out of court before it gets before a jury. Let the jury decide whether or not the coach
acted in a reasonable fashion. Let the
jury decide whether or not Olivia should recover any damages, as she could have
said no and opted out of the swim meet, although she obviously would have made
her coach and three fellow swimmers in the relay race pretty unhappy.
I think that if Olivia had been told
several days before the meet that she could either learn how to dive or that
she was off the swim team, that would be more reasonable. This is the kind of question that juries are
made to answer. Jurors are the
conscience of the community, and this case should have been allowed to proceed
to trial.
Charlie Unger is a criminal defense attorney in the Glendale
law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the
Foothill Centre for Personal and Family Development. Mr. Unger writes a bimonthly column on legal and psychological
issues. He can be reached at charlie@charlieunger.com or at (818) 244-8694