41 Cal.Rptr.3d 299 (2006) 38 Cal.4th 148 131 P.3d 383

Jose Luis AVILA, Plaintiff and Appellant,
v.
CITRUS COMMUNITY COLLEGE DISTRICT, Defendant and Respondent.

No. S119575.

Supreme Court of California.

April 6, 2006.

*301 Law Offices of Alan E. Wisotsky and Brian P. Keighron, Oxnard, for Plaintiff and Appellant.

Gibeaut, Mahan & Brisco, Gary Robert Gibeaut, John W. Allen and Lisa J. Brown, Los Angeles, for Defendant and Respondent. *300

*302 WERDEGAR, J.

During an intercollegiate baseball game at a community college, one of the home team's batters is hit by a pitch. In the next half-inning, the home team's pitcher allegedly retaliates with an inside pitch and hits a visiting batter in the head. The visiting batter is injured, he sues, and the courts must umpire the dispute.

We are asked to make calls on two questions: (1) Does Government Code section 831.7, which immunizes public entities from liability for injuries sustained during "hazardous recreational activities," bar recovery against the home community college district, and (2) if not, does the community college district owe any duty to visiting players that might support liability? We conclude that section 831.7 does not extend to injuries sustained during supervised school sports, but that on the facts alleged the host school breached no duty of care to the injured batter. We reverse the judgment of the Court of Appeal.

FACTUAL AND PROCEDURAL BACKGROUND^[1]

Jose Luis Avila, a Rio Hondo Community College (Rio Hondo) student, played baseball for the Rio Hondo Roadrunners. On January 5, 2001, Rio Hondo was playing a preseason road game against the Citrus Community College Owls (Citrus College). During the game, a Roadrunners pitcher hit a Citrus College batter with a pitch; when Avila came to bat in the top of the next inning, the Citrus College pitcher hit him in the head with a pitch, cracking his batting helmet. Avila alleges the pitch was an intentional "bean-ball" thrown in retaliation for the previous hit batter or, at a minimum, was thrown negligently.

Avila staggered, felt dizzy, and was in pain. The Rio Hondo manager told him to go to first base. Avila did so, and when he complained to the Rio Hondo first base coach, he was told to stay in the game. At second base, he still felt pain, numbness, and dizziness. A Citrus College player yelled to the Rio Hondo dugout that the Roadrunners needed a pinch runner. Avila walked off the field and went to the Rio Hondo bench. No one tended to his injuries. As a result, Avila suffered unspecified serious personal injuries.

Avila sued both schools, his manager, the helmet manufacturer, and various other entities and organizations. Only the claims against the Citrus Community College District (the District) are before us. Avila alleged that the District was negligent in failing to summon or provide medical care for him when he was obviously in need of it, failing to supervise and control the Citrus College pitcher, failing to provide umpires or other supervisory personnel to control the game and prevent retaliatory or reckless pitching, and failing to provide adequate equipment to safeguard him from serious head injury. Avila also alleged that the District acted negligently by failing to take reasonable steps to train and supervise its managers, trainers, employees, and agents in providing medical care to injured players and by conducting an illegal preseason game in violation of community college baseball rules designed to protect participants such as Avila.

The District demurred, contending it was protected by Government Code section 831.7, subdivision (a),^[2] a public entity *303 tort immunity statute. The District also contended that under Ochoa v. California State University (1999) 72 Cal.App.4th 1300, 85 Cal.Rptr.2d 768 (Ochoa), it owed no duty of care to Avila. The trial court sustained the demurrer and dismissed the action against the District.

A divided Court of Appeal reversed. Relying on Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 37 Cal.Rptr.2d 171 (Acosta) and Iverson v. Muroc Unified School Dist. (1995) 32 Cal. App.4th 218, 38 Cal.Rptr.2d 35 (Iverson), the majority concluded that section 831.7 does not extend immunity to claims predicated on the negligent supervision of public school athletes and that the District owed a duty of supervision to Avila. The dissent argued that Acosta and Iverson create a limited exception only for secondary school students and that section 831.7 immunity applied.

We granted the District's petition for review to resolve an apparent split in the Courts of Appeal concerning the scope of section 831.7 immunity and to address the extent of a college's duty in these circumstances.

DISCUSSION

I. Section 831.7 Immunity

As always, we begin our analysis of a statute's meaning with its text. (Elsner v. Uveges (2005) 34 Cal.4th 915, 927, 22 Cal.Rptr.3d 530, 102 P.3d 915.) Section 831.7 provides: "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." (Id., subd. (a).) In turn, a "hazardous recreational activity" is defined as "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." (Id., subd. (b).) "Hazardous recreational activity" is further defined by a nonexclusive list of activities that qualify, including such activities as diving, skiing, hang gliding, rock climbing, and body contact sports. (Ibid.)

The text is ambiguous. The statute does not specifically define "recreational activity," but instead includes a definition for "hazardous recreational activity." That definition defines and illustrates what is meant by the term "hazardous," while merely reusing the phrase "recreational activity." (§ 831.7, subd. (b).) The term "recreational," however, is susceptible to multiple interpretations. For example, "recreation" may be defined as "Refreshment of one's mind or body after work through some activity that amuses or stimulates; play." (American Heritage Dict. (2d college ed.1982) p. 1035, italics added.) Under this definition, not only the nature of the activity but the context matters. Pitching in an adult amateur softball game would qualify as recreational; pitching for the Oakland Athletics or San Francisco Giants professional baseball teams would not. What of playing in a high school or intercollegiate baseball game, which falls somewhere between these extremes? Does it matter if one is a scholarship athlete, and thus receiving some form of reward for one's continued performance, or if one's participation in a sporting activity is compulsory because of state laws governing physical education instruction? The text alone cannot answer these questions.

This ambiguity is reflected in the disparate conclusions the Courts of Appeal have reached when applying the statutory language to negligence claims against schools and universities. For example, in Acosta, supra, 31 Cal.App.4th 471, 37 Cal.Rptr.2d 171, a high school gymnast was practicing *304 at his high school during the off-season under the supervision of an assistant gymnastics coach. He fell during a difficult maneuver, landed on his neck, and was rendered a quadriplegic. The Court of Appeal ruled that section 831.7 did not immunize the school district from liability for negligent supervision. While the court acknowledged that gymnastics was a hazardous activity, it concluded that school districts have a well-established duty to provide reasonable supervision of school-sponsored extracurricular sports programs. (Acosta, at pp. 477-478, 37 Cal. Rptr.2d 171 [citing Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1459, 249 Cal.Rptr. 688, and numerous additional out-of-state authorities].) The court found no indication the Legislature, when it adopted section 831.7, had intended to abrogate that duty. In order to resolve the conflict between the language of section 831.7 and the line of cases establishing a duty of supervision, the Acosta court reasoned that the term "recreational" should be interpreted to exclude supervised school-sponsored extracurricular athletics. (Acosta, at pp. 476, 478, 37 Cal.Rptr.2d 171.)

In Iverson, supra, 32 Cal.App.4th 218, 38 Cal.Rptr.2d 35, an eighth-grade student was injured by a hard tackle during a physical education class soccer game. Here again, the court rejected section 831.7 immunity. Though distinguishing Acosta as involving extracurricular activities, Iverson agreed with much of its reasoning. It found in the legislative history of the statute no indication the Legislature intended to immunize schools from liability for injuries to students participating in school sports. While recognizing that soccer might be hazardous, Iverson agreed with Acosta that school sports activities could fairly be excluded from the definition of "recreational." Because Iverson was not injured during participation in a hazardous "recreational" activity, section 831.7 had no application. (Iverson, at pp. 225-227, 38 Cal.Rptr.2d 35.)

In contrast, in Ochoa, supra, 72 Cal. App.4th 1300, 85 Cal.Rptr.2d 768, a California State University, Sacramento (Sacramento State) student was injured in an intramural soccer game. Escalating roughness culminated in one player throwing a punch, catching plaintiff Ochoa in the jaw. Ochoa sued Sacramento State for negligently failing to supervise the game. The trial court granted Sacramento State's motion for summary judgment and the Court of Appeal affirmed, concluding that section 831.7 immunized the university from liability. (Ochoa, at p. 1306, 85 Cal. Rptr.2d 768.) The court distinguished Acosta and Iverson as not involving adult students engaged in voluntary activities. Because soccer is a hazardous activity and Ochoa was an adult who was neither required nor expected to participate in the match, the court determined Ochoa was injured during a hazardous "recreational" activity within the meaning of section 831.7 and, accordingly, held Sacramento State absolutely immune. (Ochoa, at p. 1308, 85 Cal.Rptr.2d 768.)

In the absence of an unambiguous plain meaning, we must look to extrinsic sources such as legislative history to determine the statute's meaning. (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 977, 90 Cal.Rptr.2d 260, 987 P.2d 727.) Our review of the legislative history of section 831.7 leads us to agree with Acosta and Iverson. The statute's roots lie in Civil Code section 846, a premises liability statute that provides qualified immunity for landowners against claims by recreational users: "An owner of any estate or any other interest in real property, whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry *305 or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on such premises to persons entering for such purpose, except as provided in this section." Civil Code section 846 leaves in place whatever common law premises liability would exist "(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner." (Civ.Code, § 846.)

In the late 1970's, a split of authority developed over whether Civil Code section 846 immunity extended to public entities. Early cases assumed it did. (See English v. Marin Municipal Water Dist. (1977) 66 Cal.App.3d 725, 728-731, 136 Cal.Rptr. 224; Gerkin v. Santa Clara Valley Water Dist. (1979) 95 Cal.App.3d 1022, 1025-1028, 157 Cal.Rptr. 612; Moore v. City of Torrance (1979) 101 Cal.App.3d 66, 72, 166 Cal.Rptr. 192; Blakley v. State of California (1980) 108 Cal.App.3d 971, 975, 167 Cal.Rptr. 1.) Later cases reversed this trend. (See, e.g., Nelsen v. City of Gridley (1980) 113 Cal.App.3d 87, 91, 169 Cal.Rptr. 757.) This court finally resolved the issue in 1983, siding with the later cases and holding that public entities are not protected by Civil Code section 846. (Delta Farms Reclamation Dist. v. Superior Court (1983) 33 Cal.3d 699, 710, 190 Cal. Rptr. 494, 660 P.2d 1168.)

While Delta Farms Reclamation Dist. v. Superior Court, supra, 33 Cal.3d 699, 190 Cal.Rptr. 494, 660 P.2d 1168, was still pending in this court, Assemblyman Robert Campbell responded to the uncertainty by introducing Assembly Bill No. 555 (1983-1984 Reg. Sess.), which proposed new Government Code section 831.7. The bill's source, the East Bay Regional Park District, had expressed concern that because it was virtually impossible to prevent park users from engaging in hazardous recreational activities, substantial legal claims from recreational users might force it to limit park access. Other supporters decried allegedly baseless personal injury and property damage suits by recreational public property users. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as introduced Feb. 10, 1983, p. 2; Richard C. Trudeau, General Manager, East Bay Regional Park District, letter to Senate Com. on Judiciary, May 26, 1983; Sen. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended May 31, 1983, p. 7.) The Assembly Committee on the Judiciary analysis of the bill noted the uncertainty in the Courts of Appeal over the availability of Civil Code section 846 qualified immunity to public entities. (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Session) as introduced Feb. 10, 1983, pp. 2-3.) It explained that Civil Code section 846's "qualified immunity is [intended] to encourage landowners to make their land available to the general public for recreational purposes without risk of tort liability for permitting that use" and that "[t]his bill is patterned after Civil Code [s]ection 846." (Id. at pp. 2, 3; see also Sen. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended May 27, 1983, p. 4 ["This bill is patterned after existing law which generally provides that a private owner of any interest in land owes no duty to keep the premises safe or to warn of dangerous conditions when people are permitted to use the land for recreation"].)

*306 The Senate Committee on the Judiciary's analysis confirms that Government Code section 831.7 was designed to mirror Civil Code section 846's circumscription of property-based duties. Assembly Bill No. 555, "by providing a qualified immunity, would limit a public entity's duty to keep its land safe for certain recreational users." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended May 31, 1983, p. 7, italics added.) The bill's focus, the analysis explained, was on recreational users who might injure themselves during hazardous unsupervised activities and attempt to attribute their injuries to conditions of public property. "The primary purpose of [Assembly Bill No. 555] is to prevent the hang glider or rock climber from suing a public entity when that person injured himself in the course of the activity." (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 555 (1983-1984 Reg. Sess.) as amended May 27, 1983, p. 6.)

Thus, Government Code section 831.7 was adopted as a premises liability measure, modeled on Civil Code section 846, and designed to limit liability based on a public entity's failure either to maintain public property or to warn of dangerous conditions on public property. Nothing in the history of the measure indicates the statute was intended to limit a public entity's liability arising from other duties, such as any duty owed to supervise participation in particular activities. Consistent with the legislative history, those cases applying section 831.7 immunity generally have done so only in the context of injuries sustained during voluntary, unsupervised, unsponsored activities and have barred claims alleging breach of the duty to maintain property or to warn of unsafe conditions. (E.g., Wood v. County of San Joaquin (2003) 111 Cal.App.4th 960, 4 Cal. Rptr.3d 340 [§ 831.7 barred claim for injury sustained during unsupervised, unsponsored boating]; Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 6 Cal.Rptr.2d 437 [same for injury sustained during after-hours adult basketball game]; Tessier v. City of Newport Beach (1990) 219 Cal.App.3d 310, 268 Cal.Rptr. 233 [same for injury sustained during unsupervised diving].)

Separate and apart from the body of law governing premises liability claims, another body of law establishes that public schools and universities owe certain non-property-based duties to their students. Public schools have a duty to supervise students (Ed.Code, § 44807; Hoyem v. Manhattan Beach City School Dist. (1978) 22 Cal.3d 508, 513, 150 Cal.Rptr. 1, 585 P.2d 851; Dailey v. Los Angeles Unified School Dist. (1970) 2 Cal.3d 741, 747, 87 Cal.Rptr. 376, 470 P.2d 360), a duty that extends to athletic practice and play (see Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1458-1459, 249 Cal.Rptr. 688). Although with the demise of the in loco parentis doctrine, colleges and universities do not owe similarly broad duties of supervision to all their students (Stockinger v. Feather River Community College (2003) 111 Cal.App.4th 1014, 1031-1032, 4 Cal.Rptr.3d 385; Crow v. State of California (1990) 222 Cal. App.3d 192, 209, 271 Cal.Rptr. 349; Baldwin v. Zoradi (1981) 123 Cal.App.3d 275, 287-291, 176 Cal.Rptr. 809), that development has not limited the recognition that colleges and universities owe special duties to their athletes when conducting athletic practices and games.^[3]

*307 As Acosta, supra, 31 Cal.App.4th 471, 37 Cal.Rptr.2d 171, correctly notes, a tension exists between the immunity language of section 831.7, on the one hand, and the long-standing statutory and common law duties of student supervision schools have been recognized to have both before and after passage of section 831.7. Tension likewise exists between the legislative history of the statute, which establishes an intent focused exclusively on premises liability claims, and the language the Legislature chose to effectuate its purpose, which conceivably could be applied to a broader range of claims. (Acosta, at p. 476, 37 Cal.Rptr.2d 171.) But, as in Acosta, we need not decide whether the immunity created by section 831.7 extends only to premises liability claims. We agree with Acosta and Iverson, supra, 32 Cal.App.4th 218, 38 Cal.Rptr.2d 35, that these tensions can be resolved by acknowledging that school-sponsored and supervised sports activities are not "recreational" in the sense intended by the statute, and thus section 831.7 does not apply to immunize public educational entities from liability to students for injuries sustained during participation in such activities.

As noted, the legislative history demonstrates the Legislature had in mind immunizing public entities from liability arising from injuries sustained by members of the public during voluntary unsupervised play on public land, in order to prevent public entities from having to close off their land to such use to limit liability. Such activities may be fairly characterized as recreational. Sports in the school environment, in contrast, are not "recreational" in the sense of voluntary unsupervised play, but rather part and parcel of the school's educational mission. "It can no longer be denied that extracurricular activities constitute an integral component of public education." (Hartzell v. Connell (1984) 35 Cal.3d 899, 909, 201 Cal.Rptr. 601, 679 P.2d 35.) "They are `[no] less fitted for the ultimate purpose of our public schools, to wit, the making of good citizens physically, mentally, and morally, than the study of algebra and Latin. . . .'" (Ibid., italics added.) Interscholastic athletics are a fundamental, integral part of public education.^[4] Through high school, participation in physical education classes is mandatory. (Ed.Code, §§ 51210, subd. (g), 51220, subd. (d), 51222; see also id., § 51210.2, subd. (a) [declaring physical fitness of equal importance with other elements of curriculum].) Likewise, "[c]ollege athletic programs have long been regarded as integral components of the college experience." (Whang, supra, 2 Sports Law. J. at p. 25; see *308 California State University, Hayward v. National Collegiate Athletic Assn. (1975) 47 Cal.App.3d 533, 541-542, 121 Cal.Rptr. 85.) Intercollegiate athletics are part and parcel of community colleges' educational mission as well. (Cabrillo Community College Dist. v. California Junior College Assn. (1975) 44 Cal.App.3d 367, 372-373, 118 Cal.Rptr. 708.) And, as discussed above, a separate body of law has developed to govern the special duties that schools and colleges owe their athletes.

The paramount goal of statutory interpretation is to "ascertain the intent of the drafters so as to effectuate the purpose of the law." (Esberg v. Union Oil Co. of Cal. (2002) 28 Cal.4th 262, 268, 121 Cal. Rptr.2d 203, 47 P.3d 1069.) Nothing in the legislative history indicates the Legislature ever contemplated or intended that passage of section 831.7 would overrule the body of law governing supervisorial duties and liability in the school sports context. We agree with the Court of Appeal in Acosta, supra, 31 Cal.App.4th at page 478, 37 Cal.Rptr.2d 171: In the absence of any indication of such a legislative intent, we will not read section 831.7 as immunizing public entities from potential liability arising out of their oversight of school-sponsored activities. Thus, we conclude that school sports in general, and organized intercollegiate games in particular, are not "recreational" within the meaning of the statute.^[5] Avila was injured while participating in an intercollegiate baseball game. Section 831.7 does not immunize the District from liability.

II. The Duty of Care Owed College Athletes

A. Primary Assumption of the Risk and the Duty Not to Increase Risks Inherent in a Sport

The District asserted as an alternate basis for demurrer that it owed Avila no duty of care. To recover for negligence, Avila must demonstrate, inter alia, that the District breached a duty of care it owed him. Generally, each person has a duty to exercise reasonable care in the circumstances and is liable to those injured by the failure to do so. (Rowland v. Christian (1968) 69 Cal.2d 108, 112, 70 Cal.Rptr. 97, 443 P.2d 561.) By statute, the Legislature has extended this common law standard of tort liability to public employees (§ 820, subd. (a); Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932, 80 Cal.Rptr.2d 811, 968 P.2d 52) and has extended liability for public employees' negligent acts to public entity defendants (§ 815.2, subd. (a); Hoff, at p. 932, 80 Cal.Rptr.2d 811, 968 P.2d 522).

The existence of "`"[d]uty" is not an immutable fact of nature "`but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.'"'" (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472, 63 Cal.Rptr.2d 291, 936 P.2d 70.) Thus, the *309 existence and scope of a defendant's duty is an issue of law, to be decided by a court, not a jury. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004, 4 Cal.Rptr.3d 103, 75 P.3d 30.) When the injury is to a sporting participant, the considerations of policy and the question of duty necessarily become intertwined with the question of assumption of risk.

The traditional version of the assumption of risk doctrine required proof that the plaintiff voluntarily accepted a specific known and appreciated risk. (Prescott v. Ralph's Grocery Co. (1954) 42 Cal.2d 158, 161-162, 265 P.2d 904, citing Rest., Torts, § 893.) The doctrine depended on the actual subjective knowledge of the given plaintiff (Shahinian v. McCormick (1963) 59 Cal.2d 554, 567, 30 Cal.Rptr. 521, 381 P.2d 377) and, where the elements were met, was an absolute defense to liability for injuries arising from the known risk (Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 7