Bush v. Parents Without Partners, C014019

• Decision Date: 29 June 1993
• Docket Number: No. C014019,C014019
• Citation: 17 Cal.App.4th 322,21 Cal.Rptr.2d 178
• Court: California Court of Appeals Court of Appeals
• Parties: Dorothy BUSH, Plaintiff and Appellant, v. PARENTS WITHOUT PARTNERS et al., Defendants and Respondents.

Page 178

21 Cal.Rptr.2d 178

17 Cal.App.4th 322

Dorothy BUSH, Plaintiff and Appellant, v. PARENTS WITHOUT PARTNERS et al., Defendants and Respondents.

No. C014019.

Court of Appeal, Third District, California.

June 29, 1993.

Brislain, Zink & Lenzi and Albert J. Lenzi, Jr., Chico, for plaintiff and appellant.

Borton, Petrini & Conron and Tom Gifford, Sacramento, for defendant and respondent Parents Without Partners.

Halkides & Morgan, James C. Pappas and Arthur L. Morgan, Redding, for defendant and respondent Chico Area Recreation and Park Dist.

SPARKS, Associate Justice.

Plaintiff Dorothy Bush sustained personal injuries when she slipped and fell while dancing. She sued the organization sponsoring the dance and the public agency owning the dance hall. The trial court granted summary judgment against plaintiff based upon her assumption of the risk. We shall reverse.

FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed a complaint for personal injury against the local and international chapters of Parents Without Partners (collectively, Parents Without Partners), sponsors of the event, and the Chico Area Recreation and Park District (District), owner of the Melody Dance Hall where the incident occurred. Plaintiff alleged general negligence and premises liability in her complaint. Parents Without Partners cross-complained against the District for indemnity.

The District and Parents Without Partners jointly moved for summary judgment based on the doctrine of reasonable implied assumption of risk.

The following facts are taken from the defendants' separate statements of undisputed facts which plaintiff agreed were not in dispute:

Before her accident, plaintiff attended at least 36 dances sponsored by Parents Without Partners at the Melody Dance Hall in the past 7 years. When plaintiff first arrived at the dance on the night in question she observed a substance on the dance floor which she thought to be Ivory Snow Flakes. She had seen this substance used on the floor on at least three prior occasions and was aware the substance made it easier for the dancer's foot to slide on the floor. At dances before her accident when she saw the substance on the floor, plaintiff would not dance until the floor was swept. On those prior occasions, the floor would continue to be swept on and off through the evening.

On the evening of her accident, plaintiff waited until the substance had been swept once before she danced. Although the floor had been swept once, the substance was still visible. Plaintiff slipped and fell while dancing. After her fall, she noticed the substance on her clothes.

In addition to plaintiff's response to the defendants' statement of undisputed facts, plaintiff filed her own statement of undisputed facts. ¹ In that statement plaintiff asserted the following facts were undisputed:

The substance was applied to the floor to make it easier to dance, not to make the floor slippery. Plaintiff never danced on the floor when she was able to see that the substance was on the floor. ² Plaintiff had danced two dances without incident on the night of the accident and was dancing the third dance when she slipped and fell. She did not see any other person slip and fall that night before her accident.

The trial court granted the defendants' motion for summary judgment and this appeal followed.

DISCUSSION

I Standard of Review

"A motion for summary judgment 'shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' (Code Civ.Proc., § 437c, subd. (c).) The purpose of summary judgment is to penetrate evasive language and adept pleading and to ascertain, by means of affidavits, the presence or absence of triable issues of fact." (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) Consequently, "[a] defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff's asserted causes of action can prevail." (Ibid.)

"Since a summary judgment motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, we independently review them on appeal, applying the same three-step analysis required of the trial court.... First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond by establishing a complete defense or otherwise showing there is no factual basis for relief on any theory reasonably contemplated by the opponent's pleading.... [p] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor.... [p] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065, 225 Cal.Rptr. 203, citations omitted.)

II Assumption of the Risk

After the trial court entered judgment in this case, the Supreme Court issued two opinions concerning the doctrine of assumption of the risk. (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696; Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724.) As we recently explained, "[i]n Ford, Justice Arabian authored a lead opinion in which no other justice joined. In Knight, Justice George penned the lead opinion in which Chief Justice Lucas and Justice Arabian concurred. Justice Mosk provided a majority vote with a concurring opinion that agreed for the most part with the lead opinion. (Knight, supra, 3 Cal.4th at p. 321 [11 Cal.Rptr.2d 2, 834 P.2d 696], conc. & dis. opn. of Mosk, J.) Because Knight commands a strong plurality, and because it speaks generally to the doctrine of implied assumption of the risk, we will follow Knight here." (Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1397, 14 Cal.Rptr.2d 679.)

According to the Knight court, the term "assumption of risk" applies to two different situations: "(1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk--the category of assumption of risk that the legal commentators generally refer to as 'primary assumption of risk'--and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of the duty--what most commentators have termed 'secondary assumption of risk.' " (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Thus, a primary assumption of risk bars a defendant's liability to the plaintiff for injury because the defendant has no legal duty to eliminate, or protect the plaintiff from, the risks.

"As a general rule," the Knight court went on, "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.) 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, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The plaintiff in Knight was injured in a touch football game when the defendant, another player, collided with her, knocked her over, and then stepped on her hand. Just before the play which resulted in the collision, the plaintiff had asked the defendant to be careful. (3 Cal.4th at p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The Knight court held this situation fell within the doctrine of primary assumption of risk because the risk of collision and injury is inherent in the game and the defendant's conduct was not "so reckless as to be totally outside the range of the ordinary activity involved in the sport." (Id. at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In our view, the recreational dancing at issue here is not a sport within the ambit of Knight. Duty is constricted in the sports setting because the activity involves inherent risks which cannot be eliminated without destroying the sport itself. Sky diving, to take an extreme example, is inherently dangerous and cannot be made completely safe without altering the nature of the sport. Thus, in the sports context duty is fashioned "in the process [of] defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport." (3 Cal.4th at p. 317, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Indeed, it is an open question whether all sports are included within the limited duty of care rule of Knight. As the Knight court noted, the rule has been "in situations involving a wide variety of active sports, ranging from baseball to ice hockey and skating. Because the touch football game at issue in this case clearly falls within the rationale of this rule, we have no occasion to decide whether a comparable limited duty of care appropriately should be applied to other less active sports, such...