I am going to respectfully disagree with the Sixth District Court of Appeal in San Jose on this one.  And I say respectfully because I really do see both sides.  This is the matter of Olivia Kahn vs. Eastside Union High School.  Olivia Kahn is a fourteen-year-old who broke her neck when she dove into a shallow pool at the urging of her high school swim coach.  Young Olivia was on the swim team and had been in two swim meets; however, before this incident, she had never been required to dive.  Olivia would always swim the first leg of the relay race, and the first swimmer starts from inside the pool.  In this matter, Olivia’s coach, Coach McKay, indicates that he had taught Olivia how to dive, while Olivia claims she had not been so taught.  Olivia says that shortly before her event, she realized she had not been put as the swimmer of the first leg, and that a dive would be required.  She says she told Coach McKay that she needed to start from inside the pool, that she didn’t know how to dive and was afraid to dive.  She further testified that she had never dove into the shallow racing pool and was quite scared.   Coach McKay allegedly said to her that she either did the dive or didn’t swim for the team.  This conversation took place approximately five minutes before the race.  Olivia decided she would give it a try and she started to practice diving with help from her teammates.  Please note that these were dives off diving blocks into a three-and-a-half foot deep pool.  Ms. Kahn’s first two practice dives went without incident; however, on her third dive, she broke her neck.

The question here is can a fourteen-year-old student sue her high school and her swim team coach when the coach knew she was afraid of diving yet strongly suggested that she do so into a shallow pool of water. 

The District Court of Appeal ruled two to one that Olivia assumed the risk of injury in this case.  The Court concluded that Olivia was a voluntary participant and she could have refused to swim. 

I’m with the dissenting Justice on this one, who argued that this case should not have been dismissed at what is referred to as the “summary judgment” stage, but that the case should have proceeded to trial.  At trial, Olivia would have had the opportunity to present her claim to a jury as to whether or not there was negligence with Coach McKay apparently put a great deal of pressure on her to dive with arguably no training.  Olivia further contended that she had previously told Coach McKay about her concerns, and he had promised she would never have to dive.  The question for the jury would have been whether or not Coach McKay put Olivia in a situation where there was an unreasonable risk of injury. 

The two Justices who voted in the majority stated that, “In our view, sports instruction would be severely hampered by a rule imposing liability on coaches or instructors who merely challenge their students to accomplish more.”  I understand that; however, I think there’s a difference between challenging a student to accomplish more and putting a student at risk in a situation in which she is clearly not prepared.  The Justice who dissented indicated that the school has a duty of care to their student swimmers, and a jury ought to decide whether or not the school is culpable.


It appears as if the plaintiff’s attorney will ask the Court of Appeal for a re-hearing, or instead, take the next step, which will be to go up to the California State Supreme Court. 

As I said at the beginning, I see where the school is coming from; however, I don’t think this is the kind of case that should be thrown out of court before it gets before a jury.  Let the jury decide whether or not the coach acted in a reasonable fashion.  Let the jury decide whether or not Olivia should recover any damages, as she could have said no and opted out of the swim meet, although she obviously would have made her coach and three fellow swimmers in the relay race pretty unhappy. 

I think that if Olivia had been told several days before the meet that she could either learn how to dive or that she was off the swim team, that would be more reasonable.  This is the kind of question that juries are made to answer.  Jurors are the conscience of the community, and this case should have been allowed to proceed to trial.


Charlie Unger is a criminal defense attorney in the Glendale law firm of Flanagan, Unger, Danis & Grover, and a psychotherapist at the Foothill Centre for Personal and Family Development.  Mr. Unger writes a bimonthly column on legal and psychological issues.  He can be reached at or at (818) 244-8694