Nypl et al v. Crisis Prevention Institute

Filing 48

Order, signed 9/14/18, by Magistrate Judge Jacqueline Scott Corley denying 37 CPI's Motion for Summary Judgment.(klhS, COURT STAFF) (Filed on 9/17/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARISSA NYPL, et al.,

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Plaintiffs,

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ORDER RE: DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT

v.

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CRISIS PREVENTION INSTITUTE,

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Re: Dkt. No. 37

Defendant.

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United States District Court
Northern District of California

Case No.16-cv-04956-JSC

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Plaintiffs Marissa Nypl and Vladimir Nypl (together, “Plaintiffs”) sued Defendant Crisis

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Prevention Institute, Inc. (“CPI”) in state court for negligence and loss of consortium stemming

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from an injury sustained by Ms. Nypl during an advanced physical training course conducted by

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CPI.1 CPI removed the action to this Court pursuant to 28 U.S.C. § 1441(b), based on diversity

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jurisdiction. (Dkt. No. 1.)2 Now pending is Defendant’s motion for summary judgment. (Dkt.

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No. 37.) After careful review of the parties’ briefing, and having had the benefit of oral argument

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on September 13, 2018, the Court DENIES Defendant’s motion. There is a genuine dispute as to

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(1) whether the alleged conduct was outside the range of the ordinary activity inherent in the

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training exercise, and (2) was an extreme departure from the ordinary standard of conduct.
BACKGROUND

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I.

Marissa Nypl was employed as a licensed psychiatric technician with Butte County

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The Parties

Behavioral Health (“Butte County”) and certified CPI training instructor from 2010 until June

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The parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. §
636(c). (Dkt. Nos. 10 & 13.)
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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.

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2015. (Dkt. No. 37-3, Ex. B at 14:15-22; 16:9-17:7; 28:20-22.) Ms. Nypl is not currently

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employed. (Dkt. No. 38-2, Ex. 6 at 176:17-18.) Vladimir Nypl is Marissa’s Nypl’s spouse. (Dkt.

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No. 1 at 13.)

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CPI is an international organization that conducts training programs for human service

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professionals. (Dkt. No. 37-2 at ¶¶ 2-4.) “California hospitals and psychiatric institutions use

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CPI’s courses to ensure compliance with the State of California’s workplace requirement for

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violence prevention training.” (Id. at ¶ 6.) “CPI offers Instructor Certification Courses that allow

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human service professionals to become certified to teach the Nonviolent Crisis Intervention

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(“NCI”) program.” (Id. at ¶ 4.) An NCI-certified instructor “can then attend more advanced
courses such as the Applied Physical Training (“APT”) program.” (Id. at ¶ 5.) Certified

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United States District Court
Northern District of California

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instructors must take a new CPI class every four years to maintain their certification, and may

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choose “from a menu of different classes.” (Dkt. No. 37-3, Ex. B at 31:6-17.)

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II.

Factual Background
Marissa Nypl’s Duties of Employment and CPI Certification

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A.

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Patients assigned to Butte County are treated for various mental health issues, including

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“[b]ipolar disorder, schizophrenia, addiction, personality disorders, [and] depression.” (Dkt. No.

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37-3, Ex. B at 17:10-11.) In her role as a licensed psychiatric technician (“technician”) at Butte

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County, Ms. Nypl assisted patients in their activities of daily living, disbursed medication, and

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dealt with “assault[s],” and “out of control, angry, upset . . . and sad people.” (Id. at 18:14-20.)

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Ms. Nypl was also responsible for monitoring the training of other staff members at Butte County,

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and ensuring that staff completed state-mandated training requirements. (Id. at 19:12-21:1.) As a

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CPI-certified instructor, Ms. Nypl also taught in-house CPI classes. (Id. at 19:15-22.)

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Ms. Nypl attained her CPI instructor certification in 2010. (Id. at 14:15-22.) To maintain

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her certification, Ms. Nypl was required to take another CPI course in 2014. (Id. at 31:6-11.) CPI

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offered a menu of advanced courses. (Id. at 15-20.) Ms. Nypl’s supervisor suggested that she take

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the APT course because Ms. Nypl’s unit was experiencing “an increase in violence,” and patients

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were “getting more volatile.” (Id. at 32:18-25.) Ms. Nypl elected to attend the course “to get a

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little more advanced physical training.” (Id. at 30:11-12.)
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B.

The APT Course

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The APT course is an advanced course that “mimics real life situations,” including “special

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circumstances and emergency situations.” (Dkt. No. 37-2 at ¶¶ 7-8.) Participants “are cautioned

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about the risk of injury.” (Dkt. No. 37-2 at ¶ 8.) Ms. Nypl was aware that the course “was more

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physically advanced” than her initial CPI certification class in 2010. (Dkt. No. 37-3, Ex. B at

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29:18-25.) Course participants must “sign a Release and Waiver before participating.” (Dkt. No.

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37-2 at ¶ 8.) The Release and Waiver (“Waiver”) states, in pertinent part:

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I realize that certain CPI training programs require all participants to
engage in extensive practice and physical intervention skills. These
programs may include exercises that involve repetitive drills that
include

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Frequent stretching, kneeling, and bending
Extended periods of standing
Moving from kneeling positions to standing positions
Multiple, repeated movements requiring good
stamina and strength
Real-time simulation of physical activity requiring a
high degree of exertion and coordination

United States District Court
Northern District of California

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(Dkt. No. 37-2, Ex. 1 at 5.) The waiver further states that the signatory “waives and releases”:

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any and all claims and causes of action which I may have or acquire
against CPI, its successors, assigns, and all other persons, firms,
corporations, associations, or partnerships associated with them,
from any and all liability related to any loss, damage, or injury
(including death), sustained by me, whether known or unknown,
resulting or to result from my participation in the training program.

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It is my desire that in addition to a Release of All Claims, this
document shall be deemed to be a Covenant Not to Sue CPI
successors, assigns, and all other persons, firms, corporations,
associations, or partnerships associated with them, on account of any
damage or injury of whatever nature incurred by me as a result of
my participation in the training program.

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(Id.) Ms. Nypl signed the Waiver on May 28, 2014. (Id.); (see also Dkt. No. 37-3, Ex. B at

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39:22-24.) The APT course was conducted over a three-day period, from May 28, 2014 to May

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30, 2014. (Dkt. No. 37-3, Ex. B at 45:25.)

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C.

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CPI training materials describe the transport position as a maneuver used to “safely mov[e]

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Transport Position

an individual who is beginning to regain control.” (Dkt. No. 38-2, Ex. 10 at 184.) CPI instructs:
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Prior to moving an individual, assist the person into a more upright
position and remove your hand from the individual’s shoulder.
Reach under the individual’s arm to grab their own wrist. This
cross-grain grip better secures the individual between staff during
transport. Remove your leg from directly in front of the individual
prior to transport while maintaining close body contact.

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It is not recommended to transport an individual who is struggling.
If necessary, return to the CPI Team Control Position if the
individual’s and/or staff’s safety is at risk.

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(Id.) This instruction reflects how the transport position “was taught in 2014.” (Dkt. No. 38-2,

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Ex. 4 at 99:5-7.)

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D.

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On or about May 29, 2014, Ms. Nypl participated in the APT course with two coworkers,

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Latonya Williams and Marshal Woodward. (Dkt. No. 37-3, Ex. B at 32:8-10.) Ms. Williams and

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United States District Court
Northern District of California

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Mr. Woodward are also CPI-certified instructors. (Id.) CPI provided two instructors

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(“Instructors”) for the APT course. (Id. at 38:22-24.)

May 29, 2014 APT Course

1.

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Events According to Marissa Nypl

On the second day of the APT course, participants engaged in an exercise applying the

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transport position. During the exercise, Ms. Nypl and Ms. Williams were required to simulate the

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transport of a mock patient, an individual identified as “Brian.” (Id. at 42:1-6.) Ms. Nypl and Ms.

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Williams were familiar with the transport hold, and Ms. Williams informed the instructor that

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technicians at Butte County were trained to not “let go in a transport hold [without communicating

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to their partner] because it’s dangerous.” (Id. at 42:16-19).
The exercise required Ms. Nypl and Ms. Williams to walk on either side of Brian with one

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arm interlinked with Brian’s arm. (Id. at 43:3-5.) Ms. Nypl, standing to the right of Brian,

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interlinked her left arm with Brian’s right arm, and Ms. Williams interlinked her right arm with

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Brian’s left arm. (Id.)
Ms. Nypl and Ms. Williams were instructed to use the transport hold and walk Brian from

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one wall of the room to the opposite wall.3 (Id. at 42:3-6.) They proceeded to do so for a few feet,

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The three were in position “a few feet” from the starting wall. (Dkt. No. 37-3, Ex. B at 44:2025.) Ms. Nypl estimates that the distance between her starting position and the opposite wall was
“about 20 feet probably.” (Dkt. No. 38-2, Ex. 6 at 164:20.)
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“walking at normal speed.” (Id. at 42:6-8.) An Instructor then “ran up behind [them] and pushed

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all three . . . at full speed towards the [opposite] wall,” which contained a plate glass window. (Id.

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at 42:11-13.) Ms. Nypl believes the Instructor “might have said something” as a “signal or alert”

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prior to the push, but could not recall the exact details.4 (Dkt. No. 40-1, Ex. 1 at 9:7-14.) As they

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approached the wall, Brian lifted his feet and “kick[ed] off the wall, thrusting [them] all

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backward.” (Dkt. No. 37-3, Ex. B at 43:9-10.) Ms. Nypal’s arm was “still interlocked with

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[Brian’s]” as they were “jostled backwards,” and she felt her arm “pop.” (Id. at 43:9-21.)
Ms. Nypl recalls:

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I felt like there was a pop in my arm and I was just, like, oh, okay.
I’m going to have to take some ibuprofen tonight and just shake it
off because that’s just the way we do things in psych and in the
courses. You expect to feel a little bit of muscle soreness the next
day, so I didn’t think much of it at the time. I knew I had pain, but I
figured it would subside.

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United States District Court
Northern District of California

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(Id. at 43:20-44:2.) Ms. Nypl estimates that the Instructor pushed her team for “at least 10

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[seconds]” because they went “several feet.” (Id. at 46:24-25.) Ms. Nypl did not tell the

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Instructor to stop, nor did she hear Ms. Williams or Brian tell him to stop. (Dkt. No. 38-2, Ex. 6 at

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168:6-23.)
Ms. Nypl “iced [her] shoulder” that evening, but participated in the remaining activities

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and “finished the class,” which ended the following day. (Id. at 49:4-10.) She did not report the

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injury to the Instructors. (Id. at 47:16-19.)
2.

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Events According to Latonya D. Williams

Latonya Williams was a friend and coworker of Ms. Nypl’s at Butte County for

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approximately 13 years. (Dkt. Nos. 38-2, Ex. 2 at 13:22-24 & 40-1, Ex. 2 at 23:9-10.) Ms.

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Williams is a Behavioral Health Worker and certified CPI instructor. (Dkt. No. 38-2, Ex. 2 at

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14:21-25.) Ms. Williams attended the APT course with Ms. Nypl and Mr. Woodard in May 2014.

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CPI’s reply in support of its motion to dismiss includes a portion of Ms. Nypl’s deposition in
which she is questioned whether the Instructor “pushed [them] because he said this is going to
help your team.” (Dkt. No. 40-1, Ex. 1 at 10:12-13.) In response, Ms. Nypl states, “Right. It
could [help her team].” (Id. at 10:14.) Earlier in her deposition Ms. Nypl also states that she
remembers the Instructor discussing the push either before or after the incident and saying that “it
[could] help [her] team.” (Dkt. No. 37-3, 46:5-12.)
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Prior to attending, Ms. Williams discussed the APT course with Ms. Nypl and Mr. Woodard; the

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three decided to attend the APT course in part because their unit was “experiencing more drug-

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induced patients,” and “stuff that [they] weren’t equipped to deal with.” (Id. at 16:20-17:12.)

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At the time of Ms. Nypl’s injury, the class participants were engaged in “team transport.”
(Id. at 27:18-19; 28:1-3.) The lead Instructor did not demonstrate how to conduct the transport

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hold prior to the exercise because that maneuver is taught “in the basic course, [and] everybody

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knew [the hold].” (Id. at 28:12-14). The participants, in teams of three, were instructed to “get

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[the mock patient] off the ground and transport them away.” (Id. at 28:18-21.) Ms. Williams

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could not recall where the lead Instructor was exactly positioned when she, Ms. Nypl, and Brian

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(“her team”) started the transport hold, but the Instructor was not near her team. (Dkt. No. 40-1,

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United States District Court
Northern District of California

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Ex. 2 at 25:2-7.) Ms. Williams and her team began the transport hold “were moving slow

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[because they] were close to a wall.” (Dkt. 38-2, Ex. 2 at 30:24-25.) The team “had taken a

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couple steps” when the “second [I]nstructor began pushing Brian in the lower back.” (Dkt. No.

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40-1, Ex. 2 at 28:6-12.) As described by Ms. Williams:

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[T]he second Instructor came up behind us, and I can’t remember
exactly what he said, but he pushed – he had his two hands at
Brian’s lower back and he sped us up. He started, so we started
walking faster.

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(Dkt. No. 38-2, Ex. 2 at 31:2-6.) Ms. Williams took shorter steps to “slow it down.” (Dkt. No.

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40-1, Ex. 2 at 28:21-23.) As she describes it:

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Anyway, so we were moving pretty quickly and we were right at the
wall, and I started to chop my steps. Brian had his – kicked his leg
out and pushed off the wall. We were right there at the wall. And
then we kind of we all jerked back.

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(Dkt. No. 38-2, Ex. 2 at 31:15-19.) Ms. Williams estimates they took “eight, nine steps” when the

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Instructor pushed them, over a span of “a couple seconds.” (Id. at 32:2-5.) Ms. Williams

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remembers saying, “Okay. Okay.” while being pushed. (Id. at 32:6-8.) She also heard Brian say

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“whoa, okay, whoa, okay,” during the incident. (Id. at 32:12:13.) The second Instructor also “was

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saying something” while pushing her team, but Ms. Williams could not recall what he said. (Id. at

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32:17-19.) Had Brian not kicked the wall, Ms. Williams believes her team “would have hit the
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wall.” (Id. at 43:18-21.)

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Ms. Williams saw Ms. Nypl “rotating her shoulder kind of,” following the incident. (Id. at

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37:3.) Ms. Williams was unhurt. (Id. at 35:16-17.) Following the push, the Instructor “turned and

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started talking to the class as a whole.” (Dkt. No. 40-1, Ex. 2 at 27:5-9.) Ms. Williams does not

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remember what the Instructor said to the class. (Id. at 27:10-11.) The next day, Ms. Nypl told Ms.

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Williams that her shoulder hurt. (Id. at 39:18-21.)
3.

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Marshal Woodard was a coworker of Ms. Nypl’s at Butte County, and has been a certified

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CPI instructor for “at least twelve or thirteen years.” (Dkt. No. 38-2, Ex. 3 at 56:19-20.) Mr.
Woodard attended the May 2014 APT course with Ms. Nypl and Ms. Williams.
Mr. Woodard identified the Instructor who pushed Brian during the transport position

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United States District Court
Northern District of California

Events According to Marshal T. Woodard

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exercise as “the original [I]nstructor.”5 (Dkt. No. 40-1, Ex. 3 at 34:22-23.) Prior to the transport

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position exercise, the Instructor told the participants “that he wanted to go as real as possible.”

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(Dkt. No. 38-2, Ex. 3 at 66:7-20.) Mr. Woodard saw the Instructor “running behind and definitely

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pushing Brian forward with [Ms. Nypl and Ms. Williams] on the sides.” (Id. at 61:13-16.) The

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Instructor was pushing the team towards the opposite wall. (Id. at 61:24-25.) Mr. Woodard next

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saw “Brian’s feet up against the wall.” (Id. at 62:3-6.) After the push, Mr. Woodard describes

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seeing the following:

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[Ms. Nypl was] on the side of Brian. Brian was turned upwards in a
sitting squatting position with both feet on the wall which I didn’t
understand why that was necessary at that glance. And then I go
back to what I was doing. The [I]nstructor was back, was not
supporting Brian. He was – I would say a foot to three back. And
that’s what I observed.

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(Id. at 62:11-18.) Mr. Woodard then observed:
Brian . . . facing the [I]nstructor. [Ms. Nypl] was – had her arm over
her shoulder and had her injured shoulder or arm out in front of her,
and they were talking.

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(Id. at 65:21-25.)

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As previously noted, Ms. Williams referred to this Instructor as the “lead instructor” or “first
instructor.”
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4.

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Events According to Instructor John Hippe

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Mr. Hippe is a CPI Instructor with 17 years of experience; he was one of the two

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Instructors who conducted the May 2014 APT course. (Dkt. No. 38-2, Ex. 4 at 73:19-24, 85:6-

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21.) Mr. Hippe does not recall the incident at issue or teaching the transport position exercise,

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although he “was in the room the entire time.” (Id. at 94:19-21-95:1-5, 104:18-105:3.) Mr. Hippe

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also does not recall any participants suffering injury during the course. (Id. at 105:4-9.)
5.

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Events According to Instructor Mark Nilsen

Mr. Nilsen is a “global professional instructor” for CPI. (Dkt. No. 38-2, Ex. 5 at 133:1-3.)
He taught the May 2014 APT course under the mentorship of Mr. Hippe. (Id. at 133:24-134:4.)
Mr. Nilsen has a “foggy recollection” of the May 2014 course, noting that “there was nothing

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United States District Court
Northern District of California

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remarkable about that training that makes it stand out in [his] mind.” (Id. at 135:19-24.)

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D.

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Following the APT course, Ms. Nypl immediately experienced pain in her arm. (Dkt. No.

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38-2, Ex. 6 at 172:2-12.) Her husband, Vladimir, encouraged her to seek medical attention. (Id.)

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She went to the doctor “shortly thereafter” and reported the incident to Butte County within “24 to

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48 hours” after her return. (Id. at 172:15-19; 173:2-8.)

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Post-Injury

Ms. Nypl underwent the first of three surgeries in December 2014. (Dkt. No. 38-2, Ex. 6 at

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156:2-4; 174:10-12.) She was diagnosed with “complex regional pain syndrome” between the

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second and third surgeries. (Id.) Ms. Nypl returned to work at Butte County for a “short period of

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time” before leaving in June or July of 2015. (See id. at 159:25-160:2); (see also Dkt. No. 37-3,

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Ex. B at 16:9-17:7.)

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In July 2015, CPI employee Kathy Clark fielded a call from Ms. Nypl. (Dkt. No. 37-1 at

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1.) Ms. Nypl explained to Ms. Clark that she could not complete her required teaching hours to

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meet CPI certification because “she got hurt” during the May 2014 training program. (Id. at 4.)

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Ms. Clark’s contemporaneous notes from the call state, in part:

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Marissa mentioned they were doing a mock escort of a client and
her partner may have panicked as they pushed forward with more
speed into a wall. Practicing role play in line with more real time
when events happen. At the end of day she assumed it was just
muscle pain like everyone else who was feeling the same after all
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the physical training they did. Unfortunately Marissa actually
sustained an injury during training – had surgery to have bicep reattached. Out for 6 months – Marissa mentioned that she didn’t call
CPI previously to convey this information as everything was
covered by workman’s comp. She was mentioning it now because
she thought we should know about it. She also stated “she’s not
blaming anyone as these things sometimes happen.[”] Marissa tried
to go back to work – did so for a month but was pulled off again due
to the injury and concern by org towards further sustaining more
damage. She indicated there is now a possibility that she will be
facing another surgery. Presently, she [is] off work for an
undetermined amount of time.

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(Id.)
This lawsuit followed.

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DISCUSSION

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United States District Court
Northern District of California

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I.

Negligence
Plaintiffs allege that CPI’s negligence in the conduct of the transport position exercise

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caused Ms. Nypl’s injury. CPI argues that it is entitled to summary judgment because: (1)

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Plaintiffs’ negligence claim is barred by the primary assumption of risk doctrine; and (2) the

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signed Waiver releases CPI from all liability. While the Waiver cannot release CPI from liability

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for gross negligence, CPI insists that the evidence is insufficient to support a finding by a

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reasonable trier of fact of gross negligence, that is, “that CPI’s conduct resulted in an extreme

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departure from the ordinary standard of conduct.” (Dkt. No. 40 at 14.)

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A.

Primary Assumption of Risk

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The doctrine of primary assumption of risk creates an exception to the general rule that all

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persons have a duty to use ordinary care to avoid injuring others. Knight v. Jewett, 3 Cal. 4th 296,

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315 (1992) (citing Cal. Civ. Code § 1714). Primary assumption of risk arises in situations “where,

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by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant

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owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.”

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Id. at 314-15. In those situations, “the doctrine continues to operate as a complete bar to the

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plaintiff’s recovery.” Id. at 315. “The overriding consideration in the application of primary

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assumption or risk is to avoid imposing a duty which might chill vigorous participation in the

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implicated activity and thereby alter its fundamental nature.” Saville v. Sierra Coll., 133 Cal. App.

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4th 857, 867 (Cal. Ct. App. 2005) (internal quotation marks and citations omitted).
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Assessing whether primary assumption of risk applies is “an objective test.” Id. at 866.

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Application of the doctrine “does not depend on a particular plaintiff’s subjective knowledge or

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appreciation of the potential risk.” Id. If the doctrine otherwise applies, “a defendant is liable

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only if he intentionally injures the plaintiff or engages in conduct so reckless as to be totally

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outside the range of the ordinary activity in the sport or activity.” Id. The Court must thus

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consider the nature of the APT course and CPI’s relationship to that activity, and whether the

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Instructor’s conduct was “totally outside the range of ordinary activity” inherent in the APT

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course.

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a.

Nature of the APT Course and the Transport Hold

Every reasonable trier of fact would have to find that the nature of the activity at issue

United States District Court
Northern District of California

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involves an inherent risk of bodily injury. There is no dispute that the APT course is an advanced,

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physically demanding training course designed to simulate interactions—including emergency

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situations—involving noncompliant psychiatric patients. There is no dispute that participants are

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warned in advance that the APT course involves a risk of physical injury. Further, and as

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discussed below, there is no dispute that the transport position is a maneuver used to secure a

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patient who is a risk to self or others and that it can be dangerous to apply. For these reasons, the

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nature of the activity suggests that the primary assumption of risk doctrine should apply here.

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b.

Relationship of CPI to the Activity

“Duties regarding the same risk may differ depending on the role played by a particular

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defendant.” Saville, 133 Cal. App. 4th at 870. Under California law, the “primary assumption of

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risk applies to instructors and coaches of activities except where the instructor has increased the

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risk inherent in the learning process.” Id. To show that an instructor increased the risk, thereby

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negating the primary assumption of risk, a “plaintiff must prove the instructor acted with intent to

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cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s

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conduct was totally outside the range of the ordinary activity involved in teaching . . . [the

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activity].” Id. at 871 (internal quotation marks and citation omitted).

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The only argument set forth by Plaintiffs in opposition to the primary assumption of risk is
that the doctrine is inapplicable because the Instructor engaged in “reckless and grossly negligent
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conduct . . . that was not inherent to the subject activity.” (Dkt. No. 38 at 16.) The Court must

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therefore address whether the Instructor’s act of pushing Ms. Nypl’s team during the transport

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position exercise (a disputed fact the Court must resolve in Plaintiffs’ favor on summary

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judgment) was “totally outside the range of the ordinary activity involved” in the APT course, see

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Saville, 133 Cal. App. 4th at 866. The Court cannot conclude as a matter of law that it was not.

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The deposition testimony of Mr. Hippe, Mr. Nilsen, Ms. Williams, and Mr. Woodard—all

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certified CPI instructors who have taught the transport position many times—supports a finding by

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a reasonable trier of fact that the Instructor’s pushing of the mock patient was not inherent to the

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APT course or the transport position exercise. Ms. Williams has taught the transport position in
“at least 20 classes.” She has never pushed a mock patient to speed up the process. (Dkt. No. 38-

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United States District Court
Northern District of California

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2, Ex. 2 at 40:22-41:18.) With the exception of the May 2014 APT course, Ms. Williams has

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never seen an instructor push anyone during the transport position exercise, nor has she been

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pushed since. (Id. at 47:13-48:3.)

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Mr. Woodard has taught the transport position many times over the last 12 or 13 years.

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(Dkt. No. 38-2, Ex. 3 at 57:15-24.) He has never instructed someone to push the individuals

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performing the transport position. (Id. at 58:21-25.) Mr. Woodard instructs participants to lower

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the patient to the ground if they become noncompliant and violent, (Id. at 60:19-25) or “start[ ] to

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escalate where they’re running,” (Dkt. No. 40-1, Ex. 3 at 36:19-25).

19

As of May 2014, Mr. Hippe had taught roughly “six to ten” APT courses per year since

20

2002. (Dkt. No. 38-2, Ex. 4 at 92:15-25.) CPI’s ground rules for course instructors and

21

participants include “responsibility for the safety of others.” (Id. at 94:9-18.) Further, CPI

22

instructors practice “safe realism,” that is, making sure that instruction is “safe enough to prevent

23

harm but real enough to promote learning.” (Id. at 114:6-15.) Pushing an individual during

24

instruction of the transport position is “not something that [Mr. Hippe] would expect to have

25

happen” during training, nor is it something he has personally done or witnessed. (Id. at 115:23-

26

116:6, 119:7-120:16.)

27
28

Like Mr. Hippe, Mr. Nilsen is familiar with CPI’s due care rules for participants and
instructors. (Dkt. No. 38-2, Ex. 5 at 137:14-138:20.) Mr. Nilsen is also familiar with CPI’s “safe
11

1

realism” teaching concept. (Id. at 138:21-139:5.) Furthermore, Mr. Nilsen has never pushed a

2

participant during the transport position exercise, nor would he recommend doing so because it

3

would be unsafe. (Id. at 145:5-148:15.)

4

The testimony of Mr. Hippe and Mr. Nilsen alone raises a triable issue of material fact

5

because it supports a finding that the Instructor who pushed Ms. Nypl’s team failed to comply

6

with CPI training principles and standard teaching methods for the transport position. Mr. Hippe

7

and Mr. Nilsen were the only two Instructors conducting the APT course, and both testified that

8

they would never push a participant during instruction of the transport position because it would

9

be unsafe. Indeed, there is no evidence in the record suggesting that pushing the mock patient into
a wall—with any amount of force—during the transport position exercise is something any

11
United States District Court
Northern District of California

10

instructor would ever do, or that such a training technique, if it exists, would simulate a situation

12

that an employee might encounter. Therefore, construing the record in the light most favorable to

13

Plaintiffs, a reasonable trier-of-fact could find that the Instructor’s conduct “was totally outside the

14

range of ordinary activity involved in teaching the maneuver.” See Saville, 133 Cal. App. 4th at

15

871. To put it another way, success on Plaintiffs’ claim will not lead to a chilling of vigorous

16

participation in the teaching of the transport position exercise given that there is no evidence that

17

any instructor would ever teach what is alleged to have occurred.

18

In Saville, the plaintiff complained that he was injured by the defendant’s negligence

19

during “takedown maneuvers” taught as part of a law enforcement training class. Id. at 864. The

20

record was undisputed that the takedown activity was a required component of the class, and the

21

takedown maneuver could not be taught and eventually learned by peace officers without

22

incurring a risk of injury. Thus, “[e]liminating the risk of injury inherent in the maneuvers would

23

require eliminating the maneuvers from class.” Id. at 868. Here, in contrast, while the transport

24

position exercise includes a risk of injury, the risk of injury from the mock patient being pushed

25

against the wall (how Ms. Nypl alleges she was injured) can be eliminated without eliminating the

26

transport position exercise since on this record it is undisputed that pushing the mock patient is

27

never part of the transport position exercise.

28

CPI’s reliance on Hamilton v. Martinelli & Associates, 110 Cal. App. 4th 1012, 1023 (Cal.
12

Ct. App. 2003), while understandable, ultimately fails to persuade the Court that the primary

2

assumption of risk doctrine applies to this record. The plaintiff in Hamilton worked as a juvenile

3

probation corrections officer and sustained “injuries to her neck and back while performing a

4

training maneuver” during a required training course in “Unarmed Defensive Tactics” (“UDT”).

5

Id. at 1016. The plaintiff brought suit against the instructor and his employer alleging personal

6

injuries based on negligence and intentional tort. Id. The trial court entered summary judgment in

7

favor of the defendants concluding that the plaintiff failed “to show that the maneuver was so

8

violent or dangerous as to be outside the category of the training exercise,” and that there was “no

9

evidence that defendant[s] exceeded the boundaries of the normal risks associated with this type of

10

training.” Id. at 1016-17. Plaintiff appealed, arguing in part that there were “triable issues of fact

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United States District Court
Northern District of California

1

concerning whether defendants increased the risk of harm associated with the UDT training

12

maneuver, and intentionally caused her injuries.” Id. at 1017.

13

The appellate court affirmed, concluding that “Plaintiff’s neck and back injuries were an

14

inherent risk of performing the UDT training maneuver.” Id. at 1023. In doing so, the court

15

rejected the plaintiff’s expert declaration that the “UDT training maneuvers were ‘unnecessary and

16

inappropriate in the context of mandatory training.’” Id. at 1019. The court reasoned that the

17

expert’s statements “are merely critical of the Department’s policy of requiring plaintiff to learn

18

UDT training maneuvers. They do not address whether the risk of physical injury to plaintiff is

19

rooted in the ‘very occasion’ of her employment.” Id. at 1024. In other words, there was no

20

dispute that the UDT maneuver, which was used to physically restrain juveniles, was “a necessary

21

tool in plaintiff’s employment.” Id. Thus, the expert’s declaration merely created a dispute as to

22

whether the UDT maneuver should be taught as part of the mandatory training, not whether the

23

maneuver and its inherent risks were part of the plaintiff’s employment. Here, in contrast, there is

24

no evidence that having a third party push a patient being transported by two employees simulates

25

a risk rooted in the very occasion of Ms. Nypl’s employment. This lack of evidence no doubt

26

stems from the fact that, unlike in Hamilton where the defendant instructor admitted he engaged in

27

the maneuver, here the instructors deny that the maneuver (the pushing of the patient or the entire

28

transport team) was performed or would ever be performed.
13

Construing all evidence in the light most favorable to Plaintiffs, a reasonable trier-of-fact

1
2

could find that the Instructor’s conduct was a total departure from the ordinary activity inherent in

3

the transport position exercise and Ms. Nypl’s employment. Thus, there is a genuine dispute as to

4

whether the primary assumption of risk doctrine applies and negates CPI’s duty to Ms. Nypl.
2.

5

Waiver

Under California law, “parties may contract for the release of liability for future ordinary

6
7

negligence so long as contracts do not violate public policy.” Anderson v. Fitness Int’l, LLC, 4

8

Cal. App. 5th 867, 877 (Cal. Ct. App. 2016). A valid waiver cannot, however, release a defendant

9

from liability for gross negligence. City of Santa Barbara, 41 Cal. 4th 747, 750-51 (2007).
Where the presence of a valid waiver is undisputed, the party opposing its application bears the

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United States District Court
Northern District of California

10

burden of showing a triable issue of material fact regarding gross negligence. Anderson, 4 Cal.

12

App. 5th at 877-78.

13

Plaintiffs do not dispute that there is a valid, signed waiver releasing CPI from liability for

14

ordinary negligence. (See Dkt. No. 38 at 18-19) (“The law is clear that contractual assumption of

15

the risk doctrine asserted through a valid waiver of liability may exculpate [CPI’s] responsibility

16

for [Ms. Nypl’s] harm unless [CPI] was grossly negligent or intentionally harmed [Ms. Nypl].”).

17

Thus, Plaintiffs bear the burden of demonstrating a triable issue of material fact on gross

18

negligence. Plaintiffs have met this burden.6
A plaintiff alleging gross negligence must prove that a defendant’s actions constituted a

19
20

complete lack of due care “or an extreme departure from the ordinary standard of conduct.”

21

Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1082 (Cal. Ct. App. 2011) (internal

22

quotation marks and citation omitted). “Generally, it is a triable issue of fact whether there has

23

been such a lack of care as to constitute gross negligence,” and the record here supports that

24
25
26
27
28

6

California courts do not recognize a separate cause of action for gross negligence. See City of
Santa Barbara v. Superior Court, 41 Cal. 4th at 779-80 (“We do not view our holding . . . as
recognizing a cause of action for gross negligence.”); see also Saenz v. Whitewater Voyages, Inc.,
226 Cal. App. 3d 758, 766 n.9 (Cal. Ct. App. 1990) (“California does not recognize a distinct
cause of action for ‘gross negligence” independent of a statutory basis.”). Thus, there is no reason
for Plaintiffs to seek leave to amend to allege gross negligence; the question on summary
judgment is whether the evidence is sufficient to support a finding of gross negligence.
14

1

general approach. See Chavez v. 24 Hour Fitness USA, Inc., 238 Cal. App. 4th 632, 640 (Cal. Ct.

2

App. 2015). Drawing all inferences in favor of Plaintiffs, the deposition testimony discussed

3

above gives rise to a triable issue of fact as to whether the Instructor’s conduct was an extreme

4

departure from ordinary instruction methods in teaching the transport position. Simply put, CPI

5

presents no countervailing evidence that the Instructor’s push was not outside the ordinary

6

standard of conduct. Thus, on summary judgment the Court cannot conclude as a matter of law

7

that the Instructor’s conduct was not grossly negligent.

8

II.

Loss of Consortium
CPI argues that it is entitled to summary judgment on Mr. Nypl’s loss of consortium claim.

9

A loss of consortium claim “stands or falls based on whether the spouse of the party alleging loss

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United States District Court
Northern District of California

10

of consortium has suffered an actionable tortious injury.” Hahn v. Mirda, 147 Cal. App. 4th 740,

12

746 (Cal. Ct. App. 2007); see also Rodriguez v. Bethlehem Steel Corp., 12 Cal. 3d 382, 408 (1974)

13

(holding “that in California each spouse has a cause of action for loss of consortium, as defined

14

herein, caused by negligent or intentional injury to the other spouse by a third party.”) (emphasis

15

added). Because Plaintiffs have demonstrated a genuine dispute as to material fact both as to

16

whether the primary assumption of risk applies and whether the Instructor’s conduct constituted

17

gross negligence, the Court denies CPI’s motion for summary judgment on Mr. Nypl’s loss of

18

consortium claim.
EVIDENTIARY OBJECTIONS

19

CPI objects to the declaration of Plaintiffs’ counsel, Joseph A. Welch, (Dkt. No. 38-2), on

20
21

the grounds that it “relies on unauthenticated deposition testimony.” (Dkt. No. 40 at 5.) CPI

22

argues that the deposition transcripts attached as exhibits 2-5 to the Welch declaration are

23

inadmissible for lack of authentication because the transcripts do not include the signed certificate

24

of the reporter who took the deposition.7 CPI’s argument is moot given the supplemental

25
7

26
27
28

CPI does not object to the deposition testimony of Marissa Nypl on the grounds that it lacks
authentication, because CPI “previously submitted the court reporter certificate from Marissa’s
deposition in connection with CPI’s motion for summary judgment.” (Dkt. No. 40-1 at ¶ 3); see
also Orr v. Bank of America, NT & SA, 285 F.3d 764, 775 (9th Cir. 2002) (holding that “when a
document has been authenticated by a party, the requirement of authenticity is satisfied as to that
document with regards to all parties”). The declaration of Brian Slome, submitted by CPI in
15

1

declaration of Mr. Welch filed on August 20, 2018, which includes as exhibits the signed

2

reporter’s certificates for the deposition transcripts previously submitted by Mr. Welch. (See Dkt.

3

No. 41.)

4

CPI also objects to portions of the deposition testimony of Ms. Nypl, Ms. Williams, Mr.

5

Woodard and Mr. Hippe. Even without that testimony, however, there would still be a genuine

6

issue of material fact because the Instructors both testified that they did not push and have never

7

pushed the mock patient during a transport position exercise. Accordingly, these objections are

8

also moot.
CONCLUSION

9
10

CPI has not met its burden and shown that it is entitled to judgment as a matter of law

United States District Court
Northern District of California

11

under either the primary assumption of risk doctrine or waiver, and Plaintiff has demonstrated a

12

genuine dispute of material fact as to both. Accordingly, the Court denies CPI’s motion for

13

summary judgment.

14

This Order disposes of Docket No. 37.

15

IT IS SO ORDERED.

16

Dated: September 17, 2018

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18
19

JA QU
JACQUELINE
JACQUELINE SCOTT CORLEY
CORLEY
E
United States Magistrate Judge

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25
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support of its motion to dismiss, includes additional pages of Ms. Nypl’s deposition transcript and
requests the Court to consider those pages, “in rebuttal.” (Id. at ¶ 4.) The Court does so here.
16