A student injured while practicing breakdancing in a middle school classroom with the teacher’s permission but in his absence should be allowed to proceed to trial on his negligence claim against the school district. Since the district had a duty to supervise minor students partaking in dangerous activities, the student might be able to show that his assumption of the risk was secondary—knowingly encountering a risk caused by the defendant’s breach of duty—in which case the assumption of risk like comparative fault diminishes but does not extinguish tort recovery. There was evidence that the school had recently banned the “flips” that plaintiff was attempting when injured. That new rule and the teacher’s absence and failure to supervise raised a triable issue of fact as to the school’s breach of its duty.
California Court of Appeal, Third District (Duarte, J.); May 19, 2016; Case No. C075366