Purvey v. YMCA of Burbank CA2/2

Filed 11/18/22 Purvey v. YMCA of Burbank CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

JEFFREY NATHAN PURVEY, B309041

Plaintiff and Appellant, (Los Angeles County
Super. Ct.
v. No. 19STCV03660)

YOUNG MEN’S CHRISTIAN
ASSOCIATION OF BURBANK,
CALIFORNIA,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court for Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
Beloryan & Manukyan, Haik A. Beloryan and Vahe
Shakhgeldyan for Plaintiff and Appellant.
Olson Law Group, Sonali Olson, Joel Eric Witzman and
Kathy D’Andrea for Defendant and Respondent.
 Appellant Jeffrey Nathan Purvey fell on a basketball court
owned by respondent Young Men’s Christian Association of
Burbank, California (YMCA). Purvey sued YMCA for negligence.
The trial court granted summary judgment for YMCA.
(Code Civ. Proc., § 437c.)
On de novo review, we affirm. YMCA had no duty to
protect Purvey from falling, which is an inherent risk of playing
basketball. He presented no evidence that YMCA unreasonably
increased the risk of a fall by maintaining an overcrowded,
debris-filled, dilapidated, worn, uneven floor. The record does not
support his unpled, speculative claim that he may have slipped
on something. Judgment is proper because there is no triable
issue of material fact.
FACTS AND PROCEDURAL HISTORY
Purvey’s Allegations
Purvey’s complaint alleges that on February 19, 2017,
YMCA had a hazardous condition “in the vicinity of its basketball
courts . . . namely the overcrowding and exceeding of the
maximum capacity limitations, as well as the dilapidated, worn
out, uneven, old, debris filled, and shifting floors.” Further, “the
defective and dilapidated condition of the floors in the gym . . .
made Plaintiff’s injury imminent. By allowing such hazardous
conditions to persist on its premises, Defendant YMCA’s gross
negligence caused Plaintiff to fall and sustain severe injuries.”
YMCA’s Summary Judgment Motion
YMCA argued that it is entitled to summary judgment
because Purvey signed a liability waiver and injury from a fall is
a risk he assumed by playing basketball. It is undisputed that
Purvey fell while practicing a layup maneuver, and he knows
that one can be injured while playing basketball. He alleged that

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the gym was overcrowded and dilapidated but later claimed the
floor was wet.
In support of its motion, YMCA offered a “Waiver of
Liability, Assumption of Risk, and Indemnity Agreement”
(Waiver) signed by Purvey. Purvey testified that he signed the
Waiver but did not read it. He understands a release and waiver
means that if an operator maintains its facility properly, users
“take the risk” when they come to the gym.
Purvey knows, from years of experience, that basketball
poses a risk of injury; he once sprained an ankle while playing.
When he entered the YMCA gym, he saw others playing a
basketball game, some distance away. Purvey testified that as he
approached the hoop on a layup, “I made sure where I was going
had no people.” He took fewer than 10 running steps, then
slipped on a “liquid substance.” He did not see anything on the
floor, testifying that he would not notice water unless it was a
“huge puddle.” None of the 20 to 25 people taking turns shooting
at the same hoop slipped or fell.
Purvey did not look at the floor after falling to see if it was
wet. If there was something wet, he does not know if it was
sweat, water, or anything else. It is undisputed that he does not
know how long the liquid was there.
Purvey’s Opposition
Purvey did not dispute signing a sheet at the YMCA front
desk. He argued that the Waiver written on the sheet is not
enforceable and that YMCA committed gross negligence by
failing to properly maintain its facility or mitigate risks.
Purvey went to YMCA using a guest pass; he is not a
YMCA member. He was greeted by an employee with a sign-in
sheet, who did not explain the nature of the document or ask if

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Purvey had any questions. Purvey signed the sheet but did not
receive a copy of it. He previously went to YMCA to play
basketball and lift weights, one week before his accident.
Purvey testified that the YMCA gym has six basketball
hoops along its perimeter. A kids’ league game was taking place
on the opposite side of the gym. Spectators stood on the sidelines,
though none were on the court itself. Some 20 to 25 people
shared the hoop with Purvey, practicing shots. Purvey did layups
and jump shots for 20 to 30 minutes before falling.
Cynthia Tafolla accompanied Purvey to the YMCA. She
recalled that many people were at the gym. She saw a young boy
walking and drinking water, but she did not say he spilled it on
the court. She saw Purvey go for a layup; he went “pretty high”
for his vertical leap, then he was “just falling on the ground.”
Asked if she saw Purvey slip, Tafolla answered, “No. I just
remember seeing him up in the air.”
YMCA used a professional cleaning company that came in
when the facility was closed. Steven McCallum, a YMCA worker,
did housekeeping as necessary. He estimates the size of the
facility as around 350,000 square feet.
McCallum was trained to clean and inspect the basketball
court. He inspects the floor whenever he walks through, usually
three or four times a day, “to make sure it was clean, dry and
picked up at all times.” McCallum inspected the basketball court
at around 11:00 a.m. on the day Purvey came in. People do not
walk around the court carrying water, though McCallum has
seen people drinking water while sitting on benches at the
sidelines. He agreed that basketball players typically sweat.
YMCA staff members do not clean sweat from the floor during
play.

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 Brandon Mullen oversees the YMCA housekeeping
department. He instructed McCallum to monitor the gym but not
on a particular schedule. Mullen acknowledged that water may
create a danger on a basketball court. There is signage that no
food or drinks are allowed; people can use a drinking fountain in
the gym, which prevents spills.
YMCA’s Reply
YMCA replied that Purvey cannot avoid the Waiver by
claiming he failed to receive a copy of it. Purvey did not show
YMCA committed gross negligence in maintaining its facility.
Purvey testified that he did not see water on the gym floor and
the crowds did not cause him to fall. Purvey fell while jumping,
an inherent risk of basketball.
The Court’s Ruling
The court granted YMCA’s motion, after rejecting the
declaration of Purvey’s expert for lack of foundation. The court
cited alternate grounds for granting the motion: (1) Purvey
asserts liability “on a basis not raised in the complaint” and
(2) the primary assumption of risk doctrine bars the action. The
court did not decide if the Waiver bars suit.
The court found that falling is an inherent risk of playing
basketball. There is no showing that YMCA increased the risks.
There is no evidence Purvey slipped on anything. He never saw
liquid before or after falling and assumed he might have slipped
on liquid. His speculation does not create a triable issue. Tafolla
did not testify that she saw liquid on the floor, only that she saw
someone drinking water in the gym. If Purvey encountered

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sweat dripping from other players, this is an inherent risk.1
Without a showing of water on the floor, the expert’s opinion—
based on his “understanding” that Purvey slipped on water—
lacks foundation.2 YMCA’s failure to constantly inspect and
clean is irrelevant, absent a showing that there was anything on
the floor. Crowding in the gym had nothing to do with Purvey’s
fall. The court entered judgment for YMCA.
DISCUSSION
1. Appeal and Review
The judgment is appealable. (Code Civ. Proc., § 904.1.,
subd. (a)(1).) Summary judgment is appropriate when no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)
We independently examine the record to determine if
triable issues of fact exist. (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 767.) Evidence presented in opposition to
summary judgment is liberally construed. (Regents of University
of California v. Superior Court (2018) 4 Cal.5th 607, 618.) A
negligence claim requires proof of a duty, breach, causation, and

1At the trial court hearing, plaintiff’s counsel “absolutely”
agreed that “sweating is a natural part of playing basketball” and
sweat may drip on the floor.
2 Purvey did not challenge the ruling in his opening brief,
forfeiting any claim of error. We disregard an argument, at the
end of his reply brief, about the admissibility of the expert’s
opinion. (Julian v. Hartford Underwriters Ins. Co. (2005) 35
Cal.4th 747, 761, fn. 4 [“ ‘ “ ‘points raised in the reply brief for the
first time will not be considered, unless good reason is shown for
failure to present them before’ ” ’ ”].) He did not explain why the
argument is tardy, and YMCA had no opportunity to respond to
it.

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damages. (Ibid.) The element of duty is a question of law and is
amenable to summary judgment. (Knight v. Jewett (1992) 3
Cal.4th 296, 313.)
2. Purvey Asserts Facts Not Raised in His Pleading
The trial court wrote that because the complaint “makes
reference to ‘debris’ and ‘overcrowding’ but not any liquid . . . to
the extent Plaintiff predicates this action on slipping on liquid,
the claim is barred.” We agree. Purvey delineated the facts in
his complaint: They have nothing to do with slipping on liquid.
He did not prove the facts as alleged or amend his complaint to
allege different factual bases for his claim. On this basis alone,
summary judgment was properly granted.
A summary judgment motion allows a defendant “ ‘to show
that material factual claims arising from the pleadings need not
be tried because they are not in dispute.’ ” (FPI Development,
Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381; Nieto v. Blue
Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60, 74 [pleading determines the scope of summary
judgment].) The motion must “negate plaintiff’s theories of
liability as alleged in the complaint; that is, a moving party need
not refute liability on some theoretical possibility not included in
the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213
Cal.App.4th 486, 493.)
Purvey alleges that he fell because the YMCA gym
exceeded maximum capacity, with “dilapidated, worn out,
uneven, old, debris filled, and shifting floors” that made his
injury “imminent.” The pleading did not put YMCA on notice
that liquid on the floor proximately caused Purvey’s injury.
It is true, as Purvey urges, “ ‘we generally construe the
pleading broadly.’ ” (Soria v. Univision Radio Los Angeles, Inc.

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(2016) 5 Cal.App.5th 570, 585.) But “ ‘[a] defendant moving for
summary judgment need address only the issues raised by the
complaint; the plaintiff cannot bring up new, unpleaded issues in
his or her opposing papers.’ ” (Ibid.) Purvey is bound by the rule
that “ ‘[a] party may not oppose a summary judgment motion
based on a claim, theory, or defense that is not alleged in the
pleadings,’ ” which makes his belated claim of liquid on the floor
“ ‘irrelevant.’ ” (Jacobs v. Coldwell Banker Residential Brokerage
Co. (2017) 14 Cal.App.5th 438, 444.)
3. Assumption of Risk
The trial court found Purvey assumed the risk of injury by
engaging in an inherently risky sport or activity. “The primary
assumption of risk doctrine rests on a straightforward policy
foundation: the need to avoid chilling vigorous participation in or
sponsorship of recreational activities by imposing a tort duty to
eliminate or reduce the risks of harm inherent in those activities.
It operates on the premise that imposing such a legal duty ‘would
work a basic alteration—or cause abandonment’ of the activity.”
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 (Nalwa)
[injury on a bumper car ride].) “[A]ctive recreation, because it
involves physical activity and is not essential to daily life, is
particularly vulnerable to the chilling effects of potential tort
liability for ordinary negligence.” (Id. at p. 1157.)
The doctrine applies to YMCA. Operators of recreational
facilities, including organizations without extensive budgets,
“might not easily afford insurance to cover injuries that are
inherent risks of the activity; nor could they readily collect large
fees from participants to cover that cost. The primary
assumption of risk doctrine helps ensure that the threat of
litigation and liability does not cause such recreational activities

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to be abandoned or fundamentally altered in an effort to
eliminate or minimize inherent risks of injury.” (Nalwa, supra,
55 Cal.4th at p. 1162.) Though an operator has no duty to
eliminate inherent risks, it does “owe participants the duty not to
unreasonably increase the risks of injury beyond those inherent
in the activity.” (Ibid.)
The inherent risk of a recreational activity is determined by
“common experience . . . case law, other published materials, and
documentary evidence introduced by the parties on a motion for
summary judgment.” (Nalwa, supra, 55 Cal.4th at p. 1158.) For
example, our Supreme Court determined that being
“intentionally hit” by a pitcher is an inherent risk of baseball
“accepted by custom,” even if it is forbidden by the rules of
baseball. (Avila v. Citrus Community College Dist. (2006) 38
Cal.4th 148, 164–165.)
Basketball is an inherently risky sport. (Yarber v. Oakland
Unified School Dist. (1992) 4 Cal.App.4th 1516, 1520 [colliding
with a wall is an inherent risk of playing basketball].) “An
interested person need only turn on one of the week’s many
televised basketball games to see players falling, running or
being pushed out of bounds onto reporters’ tables, television
cameras or fans seated near the court.” (Ibid.)
Purvey engaged in an inherently risky activity where
participants routinely fall. Primary assumption of risk bars
recovery unless he can show YMCA “unreasonably” increased the
risk of injury. (Nalwa, supra, 55 Cal.4th at p. 1162.) Purvey did
not show he was injured by the crowd, or how the crowd caused
his fall; he did not show the floor was uneven, worn, dilapidated,
old or filled with debris, as alleged in his complaint.

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 If the unalleged claim of water on the floor was preserved,
the record does not support it. Purvey admittedly did not see a
substance on the floor, before or after his fall. Tafolla did not say
she saw liquid; she saw Purvey jump “pretty high” for his shot
but did not see him slip. Seeing people walk around drinking
water does not prove it was on the playing surface. Some 20 to
25 people shot baskets at the hoop, and no one slipped on liquid.
The cases Purvey cites are distinguishable because they
involve fallen substances on floors that store owners could readily
see. (Louie v. Hagstrom’s Food Stores, Inc. (1947) 81 Cal.App.2d
601, 604 [puddle of syrup from a broken jar]; Ahern v. S. H. Kress
& Co. (1950) 97 Cal.App.2d 691, 692 [12-inch puddle of liquid];
Jones v. Hotchkiss (1956) 147 Cal.App.2d 197, 202 [sawdust];
McKenney v. Quality Foods, Inc. (1957) 156 Cal.App.2d 349, 352
[lettuce leaf]; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1204
[puddle of milk].) Here, by contrast, no one saw anything on the
floor, even when Purvey was sitting on it after falling.
The issue is whether YMCA unreasonably increased the
risk of a fall. No trier of fact could find YMCA unreasonably
failed to promptly clean up a substance when the record shows
that no one saw any such substance. If Purvey slipped on drops
of sweat from the 20 to 25 other individuals shooting at the same
hoop, this is an inherent risk of basketball.
Purvey pleads that YMCA committed gross negligence.
(See City of Santa Barbara v. Superior Court (2007) 41 Cal.4th
747, 754 [gross negligence is “a ‘ “ ‘want of even scant care’ ” ’ or
‘ “ ‘an extreme departure from the ordinary standard of

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conduct’ ” ’ ”].) The record shows no evidence of ordinary
negligence, let alone gross negligence. 3
DISPOSITION
The judgment is affirmed. The Young Men’s Christian
Association of Burbank, California, is entitled to its costs on
appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

CHAVEZ, J.

BENKE, J.*

3 We need not decide if the Waiver bars Purvey’s claim.
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, Division One, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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