Gee v. National Collegiate Athletic Assocation

Filed 12/24/24 Certified for Publication 1/10/25 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ALANA GEE,
Plaintiff and Appellant,
v.
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION,
Defendant and Respondent.
B327691
Los Angeles County
Super. Ct. No. 20STCV43627
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry Green, Judge. Affirmed.
Edelson, Todd Logan, Roger Perlstadt, Amy B. Hausmann
and Hannah Hilligoss for Plaintiff and Appellant.
Bryan Cave Leighton Paisner, Christopher J. Schmidt,
Jonathan B. Potts, Lauren G. Simon, Jean-Claude Andre,
Matthew Stanford and K. Lee Marshall for Defendant and
Respondent.
_______________________

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This lawsuit arises from the 2018 death of Matthew Gee at
the age of 49. Matthew Gee had played football for the
University of Southern California (USC) from 1988 to 1992. In
the fall of 1989, he was one of twelve linebackers on USC’s depth
chart. Matthew Gee was the fifth of those linebackers to die, all
before age 50.1 (Rosenberg, USC’s Dying Linebackers—
Not So Much a Mystery (Oct. 7, 2020) <https://www.si.com/college
/2020/10/07/usc-and-its-dying-linebackers> [as of Dec. 23, 2024],
archived at <https://perma.cc/KR3K-EQJT>.) The most famous of
the five was Junior Seau, who played professional football for
many years after graduating from USC and who committed
suicide in 2012. The National Institutes of Health (NIH) later
confirmed that Seau had Chronic Traumatic Encephalopathy
(CTE), a neurodegenerative disease. (Breslow, Junior Seau
Suffered Chronic Brain Damage, NIH Study Finds (Jan. 10,
2013) <https://www.pbs.org/wgbh/frontline/article/junior-seau-
suffered-chronic-brain-damage-nih-study-finds/> [as of Dec. 23,
2024], archived at <https://perma.cc/7Y49-DLMB>.)
The coroner determined that Matthew Gee’s death was due
to the combined toxic effects of alcohol and cocaine, as well as
hypertensive and atherosclerotic cardiovascular disease,
anomalous small coronary arteries, complications of hepatic
1 In deciding the question of duty under the assumption of
risk doctrine, we may consider a wide variety of information and
are not required to take judicial notice of such information.
(Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1158–1159
(Nalwa).) Although it is undisputed that these men died, we do
not view their deaths as showing causation in this case. We note
their deaths to provide background for our discussion of the state
of college football.

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cirrhosis, obstructive sleep apnea and obesity. Based in part on
the deaths of other USC players and in part on changes in
Matthew Gee’s behavior before his death, his widow, Alana Gee,
donated his brain to Boston University’s CTE Center for study.
Dr. Thor Stein examined Matthew Gee’s brain and determined he
had Stage II CTE, which is now referred to as low level CTE.
Alana Gee subsequently filed this wrongful death action
against the National Collegiate Athletic Association (NCAA),
contending that CTE was a substantial factor in her husband’s
death, and that the NCAA negligently failed to take reasonable
steps which would have reduced his risk of contracting CTE. She
chose not to name USC as a defendant. As relevant here, the
NCAA asserted an assumption of the risk defense. It also argued
that, as an unincorporated association, it could not be held liable
for the failure of its members to vote to enact safety regulations.
The jury’s answers on the special verdict form dictated a
judgment in favor of the NCAA.
Alana Gee appeals from that judgment, contending the
trial court erred in finding that the assumption of risk doctrine
applied and in refusing an instruction she proposed on the
liability of an unincorporated association for the acts of its
members. We find the assumption of risk doctrine does apply,
and any instructional error relating to the NCAA’s responsibility
for the action or inaction of its members was harmless. We
affirm the judgment.
GENERAL BACKGROUND
Fundamentally, the assumption of the risk doctrine
represents a judicial policy decision to encourage the continuation
of dangerous activities by individuals who may have no idea of
the risks they are taking. Although the phrase “assumption of

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the risk” suggests that a participant is aware of the risks of
injuries from a sport or recreational activity, and knowingly
chooses to participate in it or opts not to participate based on his
or her knowledge of those risks, this is not how the doctrine
works. Application of the doctrine “does not depend on the
particular plaintiff’s subjective knowledge or appreciation of the
potential risk. Even where the plaintiff, who falls while skiing
over a mogul, is a total novice and lacks any knowledge of skiing
whatsoever, the ski resort would not be liable for his or her
injuries.” (Knight v. Jewett (1992) 3 Cal.4th 296, 316 (Knight).)
Rather than protecting the injured participant from the
risks of a sport, the assumption of the risk doctrine absolves
coparticipants, coaches and instructors, facilities
owners/operators and event organizers from a duty of ordinary
care toward the participant. Specifically, they have no duty to
protect a participant from a risk which is “inherent” in the sport.
(Knight, supra, 3 Cal.4th at pp. 315–316.) In effect, the doctrine
protects these defendants from the consequences of their ordinary
negligence with respect to those inherent risks.
This is consistent with the purpose of the doctrine, which is
to protect the continued vitality of the sport. (Nalwa, supra,
55 Cal.4th at p. 1154.) 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. [Citations.] The doctrine’s
parameters should be drawn according to that goal.” (Nalwa, at
pp. 1156–1157.)

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Historically, the NCAA was formed in response to an
earlier crisis in football—increasingly numerous fatalities in
college football, culminating in 18 deaths in 1905. The NCAA
created rules for college football to curtail the number of fatalities
and catastrophic injuries in the game. Consistent with its stated
purpose of “formulat[ing], copyright[ing] and publish[ing] rules of
play governing intercollegiate sports” the NCAA established rules
committees for a number of sports, including football. The
NCAA’s bylaws state “it shall be the duty of the above
committees to establish and maintain rules of play in their
respective sports consistent with sound traditions of these sports
and of such character as to ensure good sportsmanship and safe
participation by the competitors.” Members and chairs of the
committees are elected at the NCAA’s annual convention.
The NCAA’s response to the current rash of CTE diagnoses
in (deceased) football players has been different. The NCAA has
denied that it has any ability to act to reduce repeated head hits,
a major underlying cause of CTE. Both in the press and in this
case, the NCAA has questioned the very existence of CTE,
suggesting that the protein levels used to identify CTE were the
result of age, genetics, sleep apnea or the use of certain drugs.
The NCAA also claims that the link between subconcussive hits
and CTE is unproven.
CASE BACKGROUND
As stated, the NCAA denies the existence of CTE. In this
case, it relies in large part on the testimony of Dr. Douglas
Wiebe, a professor of epidemiology with a specialty in sports
concussion. In his view, the weight of scientific evidence does not
“establish” that repetitive head injury or concussion from football
causes CTE. Essentially, Dr. Wiebe criticized the methodology of

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the studies showing a link between repetitive head trauma and
CTE.
The NCAA also relies on an article in the British Journal of
Sports Medicine entitled “Consensus statement on concussion in
sport,” the purpose of which was to “develop further conceptual
understanding of sport-related concussion (SRC).” (McCrory et
al., Consensus statement on concussion in sport—the 5th
international conference on concussion in sport held in
Berlin, October 2016 <https://bjsm.bmj.com/content/bjsports/51/11
/838.\full.pdf> [as of Dec. 23, 2024], p. 1, archived at
<https://perma.cc/E7VK-A59S>.) The NCAA relies on a brief
statement that “A cause-and-effect relationship has not yet been
demonstrated between CTE and SRCs or exposure to contact
sports. As such, the notion that repeated concussion or
subconcussive impacts cause CTE remains unknown.” (Id. at
p. 7, italics omitted.)
Alana Gee contends there is a causal link between repeated
impacts to the head and CTE. The Centers for Disease Control
and Prevention (CDC) has stated that CTE is “a progressive
neurodegenerative disease caused in part by repetitive head
trauma.” The National Institute of Neurological Disorders and
Stroke (part of the NIH) stated that CTE is “a progressive
neurodegenerative disease caused by repetitive traumatic brain
injury.” Alana Gee’s expert Dr. Bennet Omalu testified there was
a general consensus in the medical literature that repetitive head
trauma can cause CTE. He estimated that over a thousand peer-
reviewed medical articles had been published linking repetitive
head trauma and CTE. He was unaware of any reputable
medical societies disavowing the link. Dr. Stein also testified
there was no “real doubt left in science” that repetitive head

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impacts cause CTE. A 2022 article in the journal Frontiers in
Neurology looked at “six well-conducted case-control studies
where the researchers made a reasonable attempt to identify RHI
[repetitive head impacts] history and had more than 50 subjects
to be sufficiently powered for statistical significance.” “The clear
and unremitting message from these studies is that the
associations between RHI (and reliable proxies for it) and CTE
cases are strong: consistently above the 2.0 benchmark” which
indicates “it is more likely than not that any individual person
with the exposure and the disease will have contracted the
disease because of the exposure than for any other reason.”
Currently, CTE can only be diagnosed formally after an
individual dies, via an autopsy or brain dissection. Symptoms of
the disease do not manifest for years or even decades after a
player stops playing.2
Alana Gee also presented evidence that “CTE is directly
proportional to the total number of hits you take to the head.
And to the extent you substantially reduce the number of hits you
take to the head, including concussions, but not limited to
concussions, you would reduce your risk for CTE.” The evidence
2 The jury did not reach the issue of whether CTE was a
substantial factor in Matthew Gee’s death. It is undisputed that
the immediate cause of his death was an alcohol and cocaine
overdose. Alana Gee presented evidence that CTE causes mood
and behavioral disorders, including substance abuse, and so was
a substantial factor in Matthew Gee’s death. The NCAA disputed
this evidence and presented evidence that Matthew Gee’s
substance abuse problems predated his CTE and began in
response to pain caused by congenital vascular insufficiency that
caused painful swelling in his legs and feet.

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showed that Matthew Gee likely sustained 4,000 to 6,000 hits to
the head during his college career.
Alana Gee alleged the NCAA knew or should have known
of the dangers of repeated head impacts well before Matthew Gee
began his college football career. She presented the testimony of
one historian and two medical doctors that the risks of repetitive
head trauma and neurodegenerative disease were knowable to
the NCAA before 1988. Her expert on medical history testified
that the terms “chronic traumatic encephalopathy” or “traumatic
encephalopathy” appeared in medical literature as early as 1940
and 1949. The NCAA pointed out that CTE research did not
exist until 2002 at the earliest, and there was no case study on
CTE in a football player until 2005. The trial court found near
the end of the trial that, at the time Matthew Gee played football,
“in the medical community in the United States, probably in the
world, [CTE] was just not on anybody’s radar screen.” The court
continued: ‘[W]e know that you can get serious or life-altering or
life-ending head injuries because that has happened.”
Alana Gee acknowledged that repeated head hits were an
inherent risk of playing college football. Her theory at trial was
that from 1988 to 1992 the NCAA should have taken reasonable
steps to reduce the number of head impacts to college football
players without changing the essential nature of the game,
thereby reducing their risk of contracting CTE. She described
seven such steps: “share medical literature about repetitive head
injuries and neurodegenerative disease when they knew it”;
“educate players about the true nature of Grade 1 concussions”;
“educate coaches and players about the dangers of leading with
their head”; “make playing rules that would have reduced head
impact”; “enforce the existing rules”; “implement return-to-play

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guidelines”; and “limit the number of full contact practices.”
Alana Gee argued that failing to take these measures
unreasonably increased the risk to Matthew Gee over the
inherent risks in football and there were measures that would
have minimized the risk to her husband without altering the
nature of football.
The NCAA contends it presented evidence showing it had
addressed all seven of the actions proposed by Alana Gee and had
done so when Matthew Gee was playing. The NCAA contended it
provided information on head injuries (including concussions) to
school-retained doctors and trainers, and warned of the dangers
of leading with the head and using helmets to block or tackle, but
offered that it was not the standard of care in the medical
community to warn football players about CTE before 2005. Put
differently, the NCAA did not provide information on CTE. The
NCAA argued it could not force its members to enact additional
rules and had no authority to enforce existing rules (which did
prohibit some forms of a player’s use of his helmet to block or
tackle an opposing player). The NCAA noted no other sport had
mandatory return-to-play guidelines when Matthew Gee played,
but also pointed out USC had developed a return-to-play
concussion protocol when Matthew Gee was playing. Finally, the
NCAA claimed its members had limited contact practices by
prohibiting contact practices during the first three days of the
preseason practice period. These measures were undertaken no
later than 1989, and primarily in response to the dangers of
concussions. It is undisputed that concussions are only
tangentially related to CTE.
On appeal, Alana Gee focuses on three of the steps she
proposes the NCAA should have taken from 1988 to 1992. She

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offered evidence that 60 percent of hits to the head occur in
practice and that limiting the number of contact practices would
decrease the number of head hits. She contends she presented
evidence of two additional measures which she believed the
NCAA should have taken to reduce the number of head impacts:
establishing and enforcing stronger anti-spearing rules, and
educating players on the risks of head injury so that players
would know that “every time you can, keep your head out of the
hit.”
As we discuss in more detail below, it is undisputed that
getting hit in the head is an inherent risk of college football. So
under the assumption of risk doctrine, the NCAA’s only duty was
not to increase that risk. Because Alana Gee contends in part
that CTE is an extrinsic risk of college football, we consider the
parties’ arguments concerning measures taken and not taken,
but there is no duty to mitigate the inherent risks of a sport.
The trial court instructed the jury on the assumption of the
risk doctrine using a modified form of CACI No. 472, which told
the jury: “Alana Gee claims Matthew Gee was harmed while
playing NCAA college football. To establish this claim, Alana
Gee must prove the following: [¶] 1. That the NCAA either: [¶] (a)
unreasonably increased the risks to Matthew Gee over and above
those inherent in college football from 1988 to 1992, [¶] or [¶]
(b) unreasonably failed to take a measure which would have
minimized the risks to Matthew Gee without altering the
essential nature of the sport. [¶] 2. That the NCAA’s conduct was
a substantial factor in causing Matthew Gee’s harm.”
These requirements were echoed on the special verdict
form. The jury answered “No” to the following questions:

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“1. Did the NCAA do something or fail to do something
that unreasonably increased the risks to Matthew Gee over and
above those inherent in college football?”
“2. Did the NCAA unreasonably fail to take a measure that
would have [minimized] the risks to Matthew Gee without
altering the essential nature of college football?”
The court entered judgment on the special verdict form and
this appeal followed.
DISCUSSION
The modern version of the assumption of the risk doctrine
was set forth by the Supreme Court in Knight: “As a general rule,
persons have a duty to use due care to avoid injury to others, and
may be held liable if their careless conduct injures another
person. (See Civ. Code, § 1714.) Thus, for example, a property
owner ordinarily is required to use due care to eliminate
dangerous conditions on his or her property. (See, e.g., Rowland
v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561,
32 A.L.R.3d 496].) In the sports setting, however, conditions or
conduct that otherwise might be viewed as dangerous often are
an integral part of the sport itself. Thus, although moguls on a
ski run pose a risk of harm to skiers that might not exist were
these configurations removed, the challenge and risks posed by
the moguls are part of the sport of skiing, and a ski resort has no
duty to eliminate them. (See generally Annot. (1987)
55 A.L.R.4th 632.) In this respect, the nature of a sport is highly
relevant in defining the duty of care owed by the particular
defendant.” (Knight, supra, 3 Cal.4th at p. 315.)
“Although defendants generally have no legal duty to
eliminate (or protect a plaintiff against) risks inherent in the
sport itself, it is well established that defendants generally do

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have a duty to use due care not to increase the risks to a
participant over and above those inherent in the sport. Thus,
although a ski resort has no duty to remove moguls from a ski
run, it clearly does have a duty to use due care to maintain its
towropes in a safe, working condition so as not to expose skiers to
an increased risk of harm. The cases establish that the latter
type of risk, posed by a ski resort’s negligence, clearly is not a
risk (inherent in the sport) that is assumed by a participant. (See
generally Annot. (1979) 95 A.L.R.3d 203.)” (Knight, supra,
3 Cal.4th at pp. 315–316.)
“As already noted, the nature of a defendant’s duty in the
sports context depends heavily on the nature of the sport itself.
Additionally, the scope of the legal duty owed by a defendant
frequently will also depend on the defendant’s role in, or
relationship to, the sport.” (Knight, supra, 3 Cal.4th at p. 317.)
All defendants have a duty not to increase the inherent risk of a
sport. (Kahn v. East Side Union High School Dist. (2003)
31 Cal.4th 990, 1004.) Generally, coparticipants and
coaches/instructors have a duty to participants to not
intentionally harm them and not to engage in conduct outside the
range of ordinary activity for the sport. (Id. at pp. 1004–1006.)
“[A] stadium owner, because of his or her different relationship to
the sport, may have a duty to take reasonable measures to
protect spectators from carelessly thrown bats. For the stadium
owner, reasonable steps may minimize the risk without altering
the nature of the sport.” (Id. at p. 1004, italics added.)
A. The Assumption of the Risk Doctrine Applies.
Alana Gee contends the trial court should not have given
any jury instruction on assumption of the risk because the
doctrine did not apply at all. Alana Gee contends that the term

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“risk” as used in the assumption of the risk doctrine either refers
to the risk of a specific injury or includes specific injuries.
According to Alana Gee, in order for the assumption of risk
doctrine to apply in this case, the trial court in this case was
required to find that CTE was an inherent risk of college football.
In Alana Gee’s view, the trial court is limited to deciding whether
the “particular risk” of which the plaintiff complains is inherent
or extrinsic. Because the trial court was “unwilling” to find CTE
was an inherent risk, she contends the trial court erred in
instructing the jury on assumption of risk.
Alana Gee characterizes CTE as an “extrinsic” risk of
college football, and so subject only to the ordinary duty of care.
She contends she offered evidence of steps which would have
reduced the risk of CTE without altering the essential nature of
the sport. To a large extent, Alana Gee’s claim of error is just a
restatement of her claim concerning inherent risk, to wit, the
trial court should not have instructed the jury on the assumption
of risk doctrine at all.
Alana Gee also complains of error in the instruction as
given. She contends that because the court had decided to
instruct on the assumption of risk doctrine, the court should have
identified the inherent risk, which it found to be repeated head
hits, and should have defined the “essential nature of the sport.”
It is not entirely clear what definition she proposes.
The trial court did not err in finding that the assumption of
risk applied because Matthew Gee’s injury was caused by an
inherent risk of college football: repeated head hits.
Assuming the trial court erred in the way it instructed the
jury on “extrinsic” risk, we see no prejudice to Alana Gee from
this error.

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We review claims of instructional error de novo. (People v.
Alvarez (1996) 14 Cal.4th 155, 217.) “A judgment may not be
reversed for instructional error in a civil case ‘unless, after an
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice.’ [Citation.] . . . [¶] Instructional error
in a civil case is prejudicial ‘where it seems probable’ that the
error ‘prejudicially affected the verdict.’ ” (Soule v. General
Motors Corp. (1994) 8 Cal.4th 548, 580 (Soule).)
1. A Specific Injury Is Not an Inherent Risk of a Sport.
Alana Gee contends that for the assumption of the risk
doctrine to apply, the court had to find that Matthew Gee’s
specific injury, CTE, was an inherent risk of college football. As
she notes, the trial court was “unwilling” to make such a finding.
In finding that the assumption of the risk doctrine applied,
the trial court ruled: “Plaintiff wants to define the ‘risk’ to be
assumed as ‘the risk of contracting CTE.’ But a pathological
definition of the risk to be assumed makes little sense . . . . The
risk athletes assume is the risk of a physical event; the precise
nature of the subsequent pathological consequences is not
something that can or need be predicted. . . . [¶] It cannot
reasonably be disputed that blows to the head are an inherent
risk of college football. [Fn. omitted.]” This is a correct
statement of the law.
As formulated in Knight, the term risk does not refer to a
specific injury. As the Court explained in that case: “In the
sports setting, . . . conditions or conduct that otherwise might be
viewed as dangerous often are an integral part of the sport itself.
Thus, although moguls on a ski run pose a risk of harm to skiers
that might not exist were these configurations removed, the

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challenge and risks posed by the moguls are part of the sport of
skiing, and a ski resort has no duty to eliminate them. (See
generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the
nature of a sport is highly relevant in defining the duty of care
owed by the particular defendant.” (Knight, supra, 3 Cal.4th at
p. 315, italics added.) There is nothing in this discussion to
suggest that the application of the doctrine turns on whether a
specific injury is an “integral part of the sport itself.” The Court
referred to dangerous “conditions or conduct” that pose a “risk of
harm” to a plaintiff. The Court did not identify a specific injury
that could occur from skiing moguls, let alone suggest that a
defendant must show that a plaintiff’s individual injury was an
inherent risk of skiing.
Although the Court in Knight relied on the sport of skiing
for much of its explanation of the doctrine, the case before the
Knight Court actually involved the sport of touch football. The
Court’s discussion of the plaintiff’s injury underscores the
unimportance of a specific injury in the doctrine. In Knight, a
coparticipant in a touch football game knocked the plaintiff down
and stepped on her hand, causing an injury to her finger that
eventually required amputation. This would certainly seem to be
an unusual injury for that sport, but the Court mentioned the
injury only in passing, and did not consider it in analyzing the
plaintiff’s claim. Rather, the Court focused on the
co-participant’s conduct to determine whether the co-participant
was entitled to the protection of the assumption of the risk
doctrine. (Knight, supra, 3 Cal.4th at pp. 320–321.)
“Accordingly, we conclude that a participant in an active
sport breaches a legal duty of care to other participants—i.e.,
engages in conduct that properly may subject him or her to

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financial liability—only if the participant intentionally injures
another player or engages in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the
sport.” (Knight, supra, 3 Cal.4th at p. 320.) The Court continued
this framing when it analyzed the evidence in the case: “As
applied to the present case, . . . [a]lthough plaintiff maintains
that defendant’s rough play . . . properly can be characterized as
‘reckless,’ the conduct alleged in those declarations is not even
closely comparable to the kind of conduct—conduct so reckless as
to be totally outside the range of the ordinary activity involved in
the sport—that is a prerequisite to the imposition of legal
liability upon a participant in such a sport.” (Id. at pp. 320–321.)
Alana Gee contends the Knight Court did not make a
distinction between conduct and injury in deciding risk because
the Court used the phrase “knocking over plaintiff, stepping on
her hand, and injuring her finger” to refer to the inherent risk of
playing touch football. We do not agree that the Knight Court
was using this phrase to describe the plaintiff’s specific injury as
part of the inherent risk of football. The Court was simply
summarizing the evidence concerning the defendant’s conduct:
“The declarations filed in support of and in opposition to the
summary judgment motion establish that defendant was, at
most, careless or negligent in knocking over plaintiff, stepping on
her hand, and injuring her finger.” (Knight, supra, 3 Cal.4th at
p. 320.)
The Supreme Court’s later summary of Knight in another
case makes it clear that it is the underlying conduct or condition
which is an inherent risk, not the injury which results from the
conduct or condition: “Applied in the sporting context, [the
doctrine] precludes liability for injuries arising from those risks

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deemed inherent in a sport; as a matter of law, others have no
legal duty to eliminate those risks or otherwise protect a sports
participant from them.” (Avila v. Citrus Community College Dist.
(2006) 38 Cal.4th 148, 161, italics added (Avila).)
Put differently, the assumption of the risk doctrine will
apply only if the plaintiff was injured by an inherent risk of the
sport. Knowing that a skier suffered a broken leg from a fall
while skiing is not sufficient to determine whether the doctrine
applies. If the skier broke his or her leg in a fall while skiing
moguls, the injury was caused by a risk inherent in the sport and
the doctrine applies; if the skier broke his or her leg due to a
poorly maintained towrope, the doctrine does not apply. Thus, it
is not the specific injury which is determinative, it is the nature
of the conduct or condition which caused it.
Alana Gee maintains subsequent cases show a specific
injury can be an inherent risk of a sport, if that is the “particular
risk” of which a plaintiff complains. She relies on three cases to
support her argument that a specific injury can be a form of risk
like conduct or conditions: Hass v. RhodyCo Productions (2018)
26 Cal.App.5th 11 (Hass); Saffro v. Elite Racing, Inc. (2002)
98 Cal.App.4th 173 (Saffro); and Wattenbarger v. Cincinnati
Reds, Inc. (1994) 28 Cal.App.4th 746 (Wattenbarger). While there
is language in all three cases which refer to the plaintiff’s injury
as an inherent risk (Wattenbarger, Hass) or a risk (Saffro) of the
sport, none of these cases hold, or even suggest, that the trial
court must find that a specific injury is a risk of the sport in order
for the assumption of the risk doctrine to apply; they do not
analyze whether a specific injury may be an inherent risk of a
sport. In addition, the facts of these three cases are unusual,
making them cumbersome at best to apply more broadly.

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Hass and Wattenbarger are dual injury cases, and the
initial injury was caused solely by the strain the plaintiff placed
on his own body while participating in a sport. Any discussion of
the initial injury as an inherent risk of a sport is dicta, and in
any event best understood as a shorthand for the risk being
caused by the strain which is an inherent risk of pitching or
running a marathon. The courts in both cases were concerned
with the role of the defendants’ conduct in causing the second
injury, not the specific nature of that injury.
In Wattenbarger, the court recognized that “[w]hatever
injury occurred on the third pitch was an inherent risk of the
pitcher’s unremitting contest with the batter.” (Wattenbarger,
supra, 28 Cal.App.4th at p. 753, italics added [third pitch caused
the initial injury].) We do not see how this assists Alana Gee, as
it indicates the specific nature of the injury is not significant, but
the underlying conduct is. Further, the issue before the court
was the defendant’s conduct in allowing the plaintiff to continue
pitching after he was injured, which caused the second injury.
(Id. at p. 756.)
In Hass, the court noted that “both parties acknowledge
that cardiac arrest is an inherent risk of the sport of
long-distance running.” (Hass, supra, 26 Cal.App.5th at p. 38.)3
The court did not expressly discuss a causal link between conduct
and the injury, but the court implicitly acknowledged that cardiac
arrest was caused by the strain placed on the body by the
3 The assumption of the risk analysis in Hass is preceded by
an extensive discussion of “inherent risk” in connection with the
court’s analysis of a release and waiver signed by the decedent
which referred to “ ‘the inherent dangers and risks’ ” arising from
participation in the race. (Hass, supra, 26 Cal.App.5th at p. 19.)

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demands of the timed long-distance race, and that this
unremitting strain was an inherent risk of such races. (Hass, at
p. 38 [noting that “requiring runners to slow down or take
breaks” would decrease the risk of cardiac arrest, but “the
operator or organizer of a recreational activity has no duty to
decrease risks inherent to the sport”].) The issue before the court
was the defendant’s conduct in failing to provide promised
emergency medical personnel. (Id. at pp. 40–41.)
Saffro involves an even more unusual set of facts. Saffro, a
long-distance runner, was diagnosed with severe hyponatremia,
which is a decreased concentration of sodium in the blood; the
hyponatremia resulted in pulmonary and cerebral edemas
(Saffro, supra, 98 Cal.App.4th at p. 176.) Hyponatremia itself
results from dehydration.4 The Court of Appeal referred to both
dehydration and hyponatremia as “risks” without further
elaboration. (Saffro, at p. 179.) Given the complicated causation
chain, it is not clear whether the court viewed dehydration as an
injury resulting from long-distance running, or the cause of an
injury (hyponatremia). We think dehydration is closer to the
muscle strain in Wattenbarger and the heart stress in Hass than
to the resulting tissue injury in Wattenbarger and cardiac arrest
4 Because Alana Gee cites Saffro for the proposition that
dehydration is an inherent risk of long-distance running, we note
the trial court ruled only that “hyponatremia is an inherent risk
of running a marathon.” (Saffro, supra, 98 Cal.App.4th at pp.
177–178.) The Court of Appeal treated hyponatremia (and
dehydration) as an extrinsic risk. (Id. at p. 179 [race organizer
had “obligation to minimize the risks of dehydration and
hyponatremia by providing adequate water and electrolyte
fluids”].)

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in Hass. Dehydration occurs when a person fails to replace fluids
that his or her body has lost. In marathons, the strain of running
causes the fluid loss. Nothing about the sport of running itself
causes the runner to not replace those fluids.5 Thus, in Saffro,
the issue was whether the defendant’s conduct caused the runner
to be unable to replace needed fluids, specifically whether the
defendant failed to provide the promised and customary fluids.
Nothing about these three cases undermines our earlier
point: an injury sustained while participating in a sport may be
caused by conduct or a condition which is inherent in the sport or
by conduct or a condition which is not inherent in the sport.
Looking at the injury does not reveal the nature of the risk which
caused it. A defendant’s liability is determined by the conduct or
condition which caused the injury. In Wattenbarger, Hass and
Saffro, the defendants’ liability, if any, turned on the defendants’
conduct, not the specific nature of the injury.
Here, it is undisputed that the conduct which causes CTE
is repeated head hits, and head hits are an inherent risk of
college football. The trial court did not err in finding that the
assumption of risk doctrine applied.
5 A runner could carry water with him, arrange for a friend
to meet him along his route, plan his route to pass water
fountains, or pre-position water bottles along his planned route.
In some cases, a participant in a sport may not have full
autonomy to provide his or her own fluids, or to access available
fluids. This situation raises a different question about causation.

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2. Alana Gee Shows No Prejudice From the Modified
Version of CACI No. 472.
The trial court, at Alana Gee’s request, gave a modified
version of CACI No. 472, which instructs the jury on the
assumption of the risk doctrine as applied to facilities
owners/operators and event sponsors/organizers.
Her proposed instruction reflects a misunderstanding of the
assumption of the risk doctrine as applied to plaintiffs who are
participants in the sport. A defendant “ha[s] no legal duty to
eliminate (or protect a [participant] plaintiff against) risks
inherent in the sport itself, [but] it is well established that
defendants generally do have a duty to use due care not to
increase the risks to a participant over and above those inherent
in the sport.” (Knight, supra, 3 Cal.4th at pp. 315–316.) Put
differently, there is no duty to reduce an inherent risk.
Having obtained the instruction she wanted, Alana Gee
now complains that the trial court should have defined the
“essential nature” of the sport and not left it up to the jury.
Alana Gee, however, does not explain how that omission could
have prejudiced her. She has acknowledged that repeated head
hits are an inherent risk of football. As she elaborates in her
appellate briefing: “College football is a contact sport where
blocking and tackling—and the resulting hits to the head—are
essential elements of play. Removing those elements would
fundamentally change the game, turning college football into
something akin to flag football.” Based on her arguments as a
whole, Alana Gee may have wanted an instruction that CTE is
not part of the essential nature of college football, or that
repeated hits to the head were an essential part of college
football. Alana Gee, however, was not entitled to an instruction

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on extrinsic risk at all, and so any ambiguity could not have
prejudiced her.
3. CTE Is Not an Extrinsic Risk of College Football.
Alana Gee makes two arguments about extrinsic risk, for
purposes of which she assumes for the sake of argument that
head hits are an inherent risk of college football. First, she
contends that CTE itself can be mitigated without changing the
essential nature of college football, and so it should be treated as
an extrinsic risk.6 Second, Alana Gee contends that Matthew
6 Alana Gee’s argument that extrinsic risks are those risks
which can be mitigated without altering the essential nature of
the sport represents a shift from her argument in the trial court.
As discussed above, she argued in the trial court that the duty to
mitigate applied to inherent risks of the sport. She did not argue,
as she appears to do on appeal, that there is a separate category
of risk that is defined by the risk’s ability to be reduced without
altering the essential nature of the sport.
In making this new argument on appeal, Alana Gee does
not mention Kahn, upon which the trial court relied, and does not
directly discuss the role of the NCAA in the sport or Matthew
Gee’s role as a participant in the sport. She relies on the use note
to CACI No. 472, which states: “There is also a duty to minimize
risks that are extrinsic to the nature of the sport; that is, those
that can be addressed without altering the essential nature of the
activity. (Hass[, supra, 26 Cal.App.5th at p. 38].)” The court in
Hass did not define extrinsic risks as those risks which can be
addressed without altering the essential nature of the sport.
Rather the Hass court, referred to “the ordinary duty of due care
with respect to the extrinsic risks of the activity, which should
reasonably be minimized to the extent possible without altering
the nature of the activity.” (Hass, at p. 38.) Put differently, this
is a statement that if a risk is extrinsic, then the defendant had a

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Gee’s CTE was not caused by those head hits but by one or more
extrinsic risks of the sport: being encouraged to continue to play
after he was injured and/or not being warned of the risk of CTE,
which is not an inherent risk of a sport. These arguments fail
because there is no evidence to support the necessary factual
predicates for them.
a. CTE and the Inherent Risk of Repeated Head
Hits Are Inextricably Intertwined.
Alana Gee’s first argument is premised on her belief that a
specific injury can be a risk within the meaning of the
assumption of the risk doctrine. As we have explained above, it
cannot. Risk refers to conduct or a condition of the sport, not the
specific injury which results from that conduct or condition. The
term “extrinsic risk” thus refers to conduct or a condition which is
not an inherent risk of the sport. For example, the lack of
medical personnel in Hass and the lack of fluids in Saffro are
examples of extrinsic risks of the sport of long-distance running.
Because we reject Alana Gee’s premise that CTE is an extrinsic
risk of college football, we need not and do not consider her
claims that the risk could be reduced.
We briefly consider her claims that CTE was not caused by
head hits, but by the NCAA’s decision to have injured players
continue to play and/or by its failure to warn of CTE. We find
them to have no merit under facts of this case, which took place
from 1988 to 1992.
limited duty to minimize it. The Judicial Council did not use the
language of Hass (or the use note’s summary of Hass’s holding) in
the standard instruction.

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Alana Gee’s theory of the case was that CTE was a direct
result of repeated head hits, and her plan for reducing CTE is to
reduce the number (and possibly type) of hits a football player
sustains. But Alana Gee has repeatedly acknowledged that
blocking and tackling are an essential part of the sport of college
football and repeated head hits, which result from blocking and
tackling, are an inherent risk of the sport. Thus, by definition,
repeated head hits cannot be minimized without changing the
game of college football. Nothing precludes the NCAA from
changing the game of college football to eliminate the inherent
risk of head hits. The assumption of the risk doctrine precludes
us from doing so.
However, Alana Gee contends that the number of hits could
have been reduced in 1988 by reducing the number of contact
practices a team holds; she contends 60 percent of hits occur
during such practices. But from 1988 to 1992, there is no
evidence in the record that the NCAA knew that reducing
full-contact practices would have led to a reduction in players
contracting CTE.
In support of her argument that practices can be changed
without changing the sport, Alana Gee argues that the NFL has
changed its practice rules without changing the game of football.
The record shows that the NFL has limited contact practices to
some extent. We see nothing in the record, however, suggesting
that NFL teams were limiting contact practices during the period
that Matthew Gee played for USC.
In addition to reducing the number of contact practices,
Alana Gee makes two suggestions for reducing the risk of CTE:
establishing and enforcing stronger anti-spearing rules, and
educating players on the risks of head injury so that players use

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more arm and shoulder tackles rather than leading with their
head. Both are attempts to reduce the number of head hits a
player experiences and have the potential to change the nature of
the sport. They suffer a further flaw—unlike practice
restrictions, there is no indication that during the era that
Matthew Gee played, these measures would actually reduce head
hits sufficiently to reduce the incidences of CTE.
NCAA rules categorically prohibited spearing when
Matthew Gee was playing for USC and provided a substantial
penalty for such conduct. There is nothing in the record to
indicate how often spearing occurred, or how often the anti-
spearing rule was not enforced. College football players (at least
those in Matthew Gee’s position), receive a thousand or more hits
per season. Without such basic information, it is not possible to
find that better enforcement would have reduced the risk of CTE.
When Matthew Gee played for USC, players were barred
from intentionally using their helmets to “ram” an opposing
player and from intentionally using the crown or top of their
helmets to “strike” a runner, and the rules provided a substantial
penalty for violations. Game penalties were provided for
violation of these rules. There is nothing in the record to show
how often permitted contact with the helmet occurred, or how
feasible it would be for a player to choose not to lead with his
helmet in the heat of a play, that is, to prevent “unintentional”
contact with the helmet. There is no basis to conclude that
education would have significantly reduced the number of head
hits, and so reduced the incidence of CTE.
We emphasize that this is not a finding that rules changes
and education are ineffective. It is simply a finding that there is

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insufficient evidence in the record before us to prove that they
would be effective.
b. Allowing Apparently Healthy Players to
Continue Playing is Not the Equivalent of
Allowing an Injured Player to Return to Play.
Alana Gee relies on Wattenbarger and a federal case,
Mayall v. USA Water Polo, Inc. (9th Cir. 2018) 909 F.3d 1055
(Mayall), to support her contention that CTE is caused by the
extrinsic risk of continuing to play after an injury.
As we have discussed, the court in Wattenbarger found that
the strain of throwing the ball was an inherent risk of baseball,
and so the assumption of risk doctrine applied to the plaintiff’s
initial injury on the third pitch. But, as the court noted, “the
incident did not end with the third pitch. Viewed in the light
most favorable to plaintiffs, the evidence establishes defendants
. . . permitted him to continue after he informed them his arm
had ‘popped.’ It is reasonable to infer that when plaintiff, a 17-
year-old, informed the Reds’ personnel his arm had ‘popped,’ he
was seeking guidance as to how to proceed. Hearing nothing to
countermand the original instruction to pitch, and obviously
anxious to please and impress the scouts, plaintiff threw another
pitch, thereby causing further injury.” (Wattenbarger, supra,
28 Cal.App.4th at pp. 753–754, fn. omitted.) The court concluded
“defendants owed a duty of care to protect participants from
aggravating injuries during the tryout. This would include
preexisting injuries known to defendants as well as those
occurring during the tryout. Thus, primary assumption of risk is

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inapplicable.” (Id. at p. 756.)7 Mayall involved a very similar
sequence of events, although the sport was water polo and the
injury a concussion. The court in Mayall largely relied on the
analysis in Wattenbarger, and we do not discuss it further.
(Mayall, supra, 909 F.3d at p. 1063 [“the case before us is
remarkably similar to” Wattenbarger].)
In her reply brief, Alana Gee contends that the cases stand
for the proposition that “the fact that an injury is the result of
repeated exposure to inherent risks of a sport does not make the
cumulative injury itself an inherent risk of the sport.” This
phrasing reverts to her flawed characterization of specific injuries
as a risk of a sport.
We do not agree that repeated exposure to conduct or a
condition is fundamentally different than a one-time exposure to
conduct or a condition.8 Many sports cause injuries to
participants as the result of repeated exposure to conduct or a
condition, specifically strain on a part of the body used heavily in
the sport: tennis elbow and runner’s knee are perhaps the most
common. It was the failure to provide guidance to the plaintiff
7 The Wattenbarger court also stated that the defendants
“owed a duty to plaintiff and the other participants not to
increase the risks inherent in the game of baseball.”
(Wattenbarger, supra, 28 Cal.App.4th at p. 755.) This is a duty
which would arise if the assumption of the risk doctrine applied.
8 Even taking Alana Gee’s argument at face value, nothing in
Wattenbarger or Mayall suggests that an injury which arises
from repeated exposure to a cumulative risk is somehow different
than an injury which results from a single exposure. It is action
or inaction after knowledge of the injury which triggers the duty
of care in those cases.

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28
when he or she sought it after being injured, resulting in the
plaintiff returning to play, that took the subsequent injury
outside the assumption of the risk doctrine in Wattenbarger and
Mayall.
Specifically, the holding in Wattenbarger applies to an
injury which occurs during gameplay and which is either
apparent to team observers or which the player brings to the
team’s attention.9 This creates a rule that a team has a duty not
to aggravate a known injury to a specific player. Put differently,
allowing an injured player to continue to play once an injury
manifests itself is not an inherent risk of any sport. This rule
does not assist Alana Gee.
Alana Gee does argue that the NCAA knew or should have
known that repeated head hits caused CTE, although the NCAA
disputes this. All college football players receive numerous head
hits, but apparently not all develop CTE. A formal diagnosis is
not possible until the player’s brain can be examined after death.
When Matthew Gee played, the NCAA did not know and could
not have known which specific college football players had
received sufficient hits to cause CTE, or when that threshold was
reached. In Matthew Gee’s case, most, if not all, of the symptoms
associated with CTE did not develop until after he stopped
playing. Thus, Matthew Gee was not in the same position as the
athletes in Wattenbarger and Mayall.
9 There is no indication that the plaintiff in Wattenbarger
had any preexisting injury, and so the reference to duty
concerning known preexisting injuries is dicta.

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c. The Duty to Warn Only Applies to Instances of
Increased Risk, Which Were Not Present Here.
Alana Gee also contends, somewhat perfunctorily, that
Matthew Gee’s CTE was caused by the NCAA’s failure to warn of
its risks; Alana Gee characterizes this as an extrinsic risk of the
sport. She relies on Lackner v. North (2006) 135 Cal.App.4th
1188 to support this claim. The duty to warn discussed in
Lackner applies to increased risks in a sport. There was no duty
to warn in that case. As the court explained: “Because there is no
evidence to show that allowing race participants access to
ordinary runs increased the risk of injury on the slopes and that
Mammoth was aware of such increased risks, it was under no
obligation to warn its patrons that race participants had free
access to all of the runs. (Id. at p. 1204, italics added.) The same
is true of the two cases cited in Lackner concerning the duty to
warn. (Id. at p. 1202.)10
Alana Gee has neither offered reasoned argument nor
pointed to any evidence in the record which would show that the
10 In Solis v. Kirkwood Resort Co. (2001) 94 Cal.App.4th 354,
a ski resort created a temporary race course on one of its ordinary
runs. After noting “a resort cannot increase the risks associated
with skiing without incurring a duty of care toward its patrons,”
(id. at p. 364), the court held that “when a resort turns part of a
previously ordinary run into a significantly more dangerous
racing area, it has a duty to warn its patrons.” (Id. at p. 366.) In
Harrold v. Rolling J Ranch (1993) 19 Cal.App.4th 578, the court
stated that a stable operator “owes the duty to warn the patrons
renting a given horse if that horse has evidenced a predisposition
to behave in ways which add to the ordinary risk of horse riding.”
(Id. at p. 587, italics added.)

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NCAA had increased the risks associated with college football
during the era Matthew Gee played at USC.
4. Inherent Prejudice
In addition to her specific claims of error, Alana Gee also
makes a general claim that it was prejudicial per se to allow the
jury to decide these legal questions: What are the inherent risks
of college football? What is the essential nature of the sport? She
is mistaken. “[T]here is no rule of automatic reversal or
‘inherent’ prejudice applicable to any category of civil
instructional error, whether of commission or omission.” (Soule,
supra, 8 Cal.4th at p. 580.) Alana Gee must demonstrate
prejudice to her and she has not.
B. CACI No. 3712
Alana Gee contends the trial court erred in refusing to
instruct the jury with a modified version of CACI No. 3712 which
explains liability of a joint venture. As relevant on appeal, the
requested modified first paragraph of the instruction would have
read: “An unincorporated association is responsible for the
wrongful conduct of a member acting in furtherance of the
unincorporated association.”11
The NCAA contends Alana Gee waived her claim that the
trial court erred in refusing to give her a modified version of
CACI No. 3712 because she has abandoned her original basis for
11 It was undisputed the NCAA was an unincorporated
association, and Alana Gee does not claim any prejudice from the
omission of the remainder of the requested instruction, which
concerned whether an unincorporated association had been
formed.

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requesting the instruction and is asserting a new basis on appeal.
Assuming for the sake of argument that waiver could occur under
such circumstances, we do not find waiver here.
Alana Gee filed an October 7, 2022 pretrial brief with the
court on the NCAA’s liability as an unincorporated association,
which included a request for the modified version of CACI No.
3712. In that brief, she made a substantially similar argument to
the one she makes in this appeal.
While the trial court and the NCAA are correct that an
unincorporated association is a creature of statute, they overlook
that those statutes essentially allow each association to set up its
own system of management and governance. An unincorporated
association is expressly permitted to create its own governing
document and to state its own governing principles. (Corp. Code,
§§ 18035, 18008, 18010.) It can define the term “member” as it
wishes. (Corp. Code, § 18015, subd. (a).) It can give the members
the right to make policy, which is generally viewed as a
management function.12 (Id. at subd. (b).)
12 The Law Revision Commission comment to Corporations
Code section 18015 provide that subdivision (b) of section 18015
is drawn from Section 1(1) of the Uniform Unincorporated
Nonprofit Association Act (1996). (Cal. Law Revision Com. com.,
Deering’s Ann. Corp. Code (2009 ed.) foll. § 18015, p. 3.) As one
commentator on the Revised Uniform Unincorporated Nonprofit
Association Act (2008) (RUUNAA) has noted: “The scope of the
requirement that members determine the ‘policy’ of the
association is unclear. Depending upon the meaning ascribed to
‘policy,’ setting policy is generally viewed as a management
function, and the segregation of this function from the
management responsibilities vested in managers under
RUUNAA is not the subject of any explanation in the comments
to the statute. In essence, the effect of vesting policy-making

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We need not resolve the issue of the NCAA’s liability for
the inaction of its Football Rules Committee or of its members at
the annual convention. The lack of a modified version of CACI
No. 3712 could only prejudice Alana Gee if the members’ actions
or inactions increased the inherent risk of repeated head hits in
college football.13 On appeal, she does not even argue that there
was such an increase. The failure to take action to reduce a risk
does not increase the risk. (Avila, supra, 38 Cal.4th at p. 166
[providing umpires at a game might have reduced the risk of a
“beanball” but the failure to do so did not increase the risk].)
authority in the members as a default rule may be that the
members constitute a type of governing board while the
managers essentially function as officers.” (Miller, Doctoring the
Law of Nonprofit Associations with a Band-aid or a Body Cast:
A Look at the 1996 and 2008 Uniform Unincorporated Nonprofit
Association Acts (2012) 38 William Mitchell L.Rev. 852, 881, fns.
omitted.)
13 As noted above, Wattenbarger could be characterized as
stating that directing an athlete to continue playing while injured
increases the inherent risks of the sport. Alana Gee did not rely
on this aspect of Wattenbarger. More importantly, as we have
explained above, Matthew Gee did not manifest symptoms which
would have suggested CTE during his playing career and so
Wattenbarger is factually inapplicable.

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DISPOSITION
The judgment is affirmed. Respondent is awarded costs on
appeal.
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.

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Filed 1/10/25
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ALANA GEE,
Plaintiff and Appellant,
v.
NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION,
Defendant and Respondent.
B327691
(Los Angeles County
Super. Ct. No. 20STCV43627)
ORDER CERTIFYING
OPINION FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
The opinion in the above-entitled matter filed on December 24, 2024,
was not certified for publication in the Official Reports. For good cause, it
now appears that the opinion should be published in the Official Reports, and
it is so ordered.
There is no change in the judgment.
________________________________________________________________________
STRATTON, P. J. WILEY, J. VIRAMONTES, J.

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