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Ochoa v. California State University6/15/1999
tion 831.7, which provides in part:"
"(a) 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 . . . persons arising out of that hazardous recreational activity."
"(b) As used in this section, `hazardous recreational activity' means 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 spectator."
"Hazardous recreational activity' also means:"
". . . . . . . . . . . . . . . . . . . . . . . . . . ."
"(3) . . . body contact sports (i.e., sports in which it is reasonably foreseeable that there will be rough bodily contact with one or more participants) . . . ."
The trial court granted CSUS's motion on the first ground, finding under the authority of Crow v. State of California (1990) 222 Cal.App.3d 192 that CSUS had no duty to plaintiff. The court did not reach CSUS's other defenses.
DISCUSSION
I.
Summary judgment is properly granted to a defendant who shows that one or more essential elements of the plaintiff's cause of action cannot be separately established or that there is an affirmative defense which bars recovery, unless the plaintiff sets forth specific facts showing a triable issue of material fact as to that cause of action or defense. (Code Civ. Proc., ยง 437c, subds. (n), (o)(2).)
Plaintiff's opening brief attacks only the trial court's reason for granting summary judgment, ignoring the other two grounds raised by CSUS's motion. Since this court may affirm the grant of summary judgment on any ground properly raised below, whether or not addressed by the trial court, plaintiff's strategy is ill-advised. (Salazar v. Southern Cal. Gas Co. (1997) 54 Cal.App.4th 1370, 1376.)
CSUS renews all three grounds in its respondent's brief. Plaintiff belatedly offers argument on the latter grounds in his reply brief. We could refuse to consider those untimely arguments. (See Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) However, since plaintiff's belated argument did not deprive CSUS of an opportunity to address the issues (ibid.), we shall address his contentions as to the grounds on which summary judgment is properly affirmed.
II.
In Crow v. State of California, supra, 222 Cal.App.3d 192, this court rejected the claim of an adult college student who was beaten by an intoxicated fellow student in a dormitory that the defendant university was liable to the plaintiff in tort for negligently operating, maintaining, and supervising the dormitory. (Id. at pp. 196-197.) We held that the usual rule of non-liability for the criminal conduct of a third party, absent a special relationship between the plaintiff and the defendant which imposed a duty on the defendant to protect the plaintiff from the type of harm that occurred, applied on these facts. (Id. at pp. 208.)
We specifically found that the plaintiff's affiliation with CSUS as a student did not create a special relationship imposing a duty of care on CSUS. Unlike high school students, whose attendance is compelled and over whom school officials have direct responsibility while the students are at school, adult college students attend school and participate in school activities voluntarily. (Crow v. State of California, supra, 222 Cal.App.3d at pp. 208-209.) Furthermore, since college administrators have abandoned in loco parentis supervision of adult students and have recognized the students' rights to control and regul
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