Dissenting. — It is comprehendible how the tragic but “freak” accident in this instance has led the majority to stretch to conclude as a matter of law that Government Code section 831.7 yields no liability *481immunity to the school district in this case. Most certainly, resultant quadriplegia and eventual death to this young high school gymnast would evoke sympathy in anyone but the completely insensitive. Remembering, however, the seasoned precaution that “hard facts make bad law,” I am constrained to observe that the interpretation given to Government Code section 831.7 by the majority, depriving the school district of liability immunity as a matter of law, in this case of first impression, is oversimplified, does not fully “track” the facts of this case, and erroneously deprives the school district of a trial on the factual dispute of whether the activities of the plaintiff were school sponsored.
In my view, the reasoning of the trial judge in granting a motion for new trial limited, among other specifically defined issues, to a determination of whether the plaintiff’s activities were school sponsored1 is sound. The trial judge recognized a dichotomy which is seriously underplayed in the majority opinion, i.e., whether the activity was “hazardous and recreational” on the one hand, giving rise to Government Code section 831.7 liability immunity or “school sponsored” on the other hand, resulting in no liability immunity.
The trial judge in ordering a limited new trial, recognized that he had failed to adequately instruct the jury by omitting instructions on the critical question of whether plaintiff’s activities were school sponsored. I agree with the trial judge that such omissions was error.
The following facts gleaned from the record and considered in conjunction with the factual statement contained in the majority opinion lend merit to the ruling of the trial judge:
The Los Angeles Unified School District, and in particular, Hamilton High School, since 1988 has opened its campus to the community for recreational purposes after school hours, not on a volunteer basis, but in accordance with the mandates of Education Code sections 10900 through 10914.5.
The gymnasium in question was also opened to the community, but only if a qualified person was there to oversee its use.
No fee was charged for the use of the gymnasium.
The injury occurred in the evening.
*482The injury occurred during the off-season for gymnastics.
The workout was not required.
Other students and general community members were present and using the equipment the evening of the accident.
Acosta, during the off-season, worked out at other places besides defendant’s school.
Students who wanted to improve their gymnastics skills usually worked out during the off-season.
Lewis Thomas, a firefighter and experienced gymnast, volunteered his time to work out with individuals interested in gymnastics.
Lewis Thomas volunteered his time at Hamilton High School and other locations.
Lewis Thomas had been requested to volunteer his time by one David Lertzman, one of the coaches at Hamilton High School.
Lewis Thomas was present at the time of the incident.
It is my opinion that the above facts give rise to a factual dispute which requires resolution by the trier of fact, and it is error for the majority to decide the issue as one of pure law.
I do not take issue with the reasoning of the majority that Government Code section 831.7 does not result in immunity to an entity for school-sponsored “extra-curricular” activities. The decisions cited by the majority are sound and compelling. I depart from the majority opinion in its result of deciding the appeal as a matter of law when confronted with facts evoking profound sympathy. This case is not a case to be decided as a matter of law, but a case, as the trial judge wisely discerned, to be decided by the jury as the trier of fact once proper instructions are given.
Accordingly, I would affirm the judgment of the trial court in its entirety.
A petition for a rehearing was denied February 2, 1995. Woods, J., was of the opinion that the petition should be granted. The petition of appellant Los Angeles Unified School District for review by the Supreme Court was denied April 13,1995. Lucas C. J., and Mosk, J., were of the opinion that the petition should be granted.
The trial judge used the term “directed” instead of the term “sponsored.” The term “sponsored” is more appropriate since that is the term used by the California Supreme Court in Hartzell v. Connell (1984) 35 Cal.3d 899 [201 Cal.Rptr.601, 679 P.2d 35], as cited in the majority opinion.