Cheong v. Antablin

• Decision Date: 24 November 1997
• Docket Number: No. S057369,S057369
• Citation: 68 Cal.Rptr.2d 859,16 Cal.4th 1063
• Court: California Supreme Court
• Parties: , 946 P.2d 817, 97 Cal. Daily Op. Serv. 8851 Wilkie CHEONG, Plaintiff and Appellant, v. Drew R. ANTABLIN, Defendant and Respondent

Page 859

68 Cal.Rptr.2d 859

16 Cal.4th 1063, 946 P.2d 817, 97 Cal. Daily Op. Serv. 8851

Wilkie CHEONG, Plaintiff and Appellant, v. Drew R. ANTABLIN, Defendant and Respondent.

No. S057369.

Supreme Court of California

Nov. 24, 1997.

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein and Joshua M. Merliss, Los Angeles, for Plaintiff and Appellant.

Horvitz & Levy, David S. Ettinger, Christine A. Pagac, Encino, Bollington and Roberts, James D. Roberts and Wayne Hunkins, Long Beach, for Defendant and Respondent.

Hancock, Rothert & Bunshoft, John E. Fagan, Joseph P. Collins and Peter J. Koenig, Tahoe City, as Amici Curiae on behalf of Defendant and Respondent.

CHIN, Justice.

Two friends went skiing together. One collided with the other, inflicting injury. We must decide whether the injured skier has a valid action in tort against the uninjured skier. The issue's resolution requires us to revisit the questions of duty and assumption of risk in a sports setting we considered in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ) and Ford v. Gouin (1992) 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724 (Ford ) and to consider a Placer County ordinance relating to skier responsibility. We conclude that, under the applicable common law principles, a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence, and we further conclude that the ordinance at issue in this case does not alter this rule. As there is no evidence the defendant skier intentionally injured plaintiff or acted recklessly, the trial court correctly granted summary judgment in his favor.

We affirm the judgment of the Court of Appeal, which reached the same conclusion.

I. FACTS AND PROCEDURAL HISTORY

The relevant facts are largely undisputed. On April 11, 1991, plaintiff Wilkie Cheong and defendant Drew R. Antablin, longtime friends and experienced skiers, skied together at Alpine Meadows, a resort near Tahoe City in Placer County. They collided, injuring plaintiff. Defendant's declaration states, "I was skiing faster than I was comfortable with, in that I felt I was skiing too fast for existing conditions. In reaction, I turned to my right in an effort to slow down, regain control and stop. As I did so, we collided." Defendant denied intentionally colliding with plaintiff or acting recklessly. In his deposition, plaintiff conceded he did not believe defendant acted recklessly.

Plaintiff sued defendant for general negligence. The superior court granted defendant's motion for summary judgment. The court found that a collision "is an inherent risk of downhill skiing." It stated that under the analysis of Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, "this is a case of 'primary' assumption of risk, which is an absolute bar to plaintiff's recovery." Citing Ford, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, it also found that a Placer County ordinance placing a duty on skiers "to ski in a safe and reasonable manner" did not give plaintiff a valid cause of action. Turning to the undisputed facts, the court found that the accident involved "an active sport, i.e., skiing[,] and the conduct of defendant was neither one of intentionally causing injury nor of conduct so reckless so as to be totally outside the range of ordinary activity involved in the sport."

Plaintiff appealed. He argued that he and defendant were not coparticipants in the sport within the meaning of Knight and Ford, and that the local ordinance imposed on defendant a duty that abrogated the assumption of risk defense. The Court of Appeal affirmed.

Citing O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193, 35 Cal.Rptr.2d 467, and Danieley v. Goldmine Ski Associates (1990) 218 Cal.App.3d 111, 123, 266 Cal.Rptr. 749, the court first found that "Collision with other skiers is considered an inherent risk of the sport." Relying heavily on Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 53 Cal.Rptr.2d 657, it also found that the assumption of risk doctrine applies to an individual sport such as skiing. Without reference to the local ordinance, it concluded: "Recreational skiing includes certain risky activities, such as avoiding trees and lift towers, negotiating moguls, and avoiding collisions with other skiers. Part of the allure of recreational skiing includes the camaraderie and socializing involved in riding up the lifts and skiing down the mountain runs or trails with friends in mutual enjoyment of nature and of the physical activity and skill required for the sport. We conclude that [plaintiff] and [defendant] ... were coparticipants in the sport as contemplated by Knight. [Defendant] did not act so recklessly as to bring him outside the bounds of the sports activity, and accordingly the defense of primary assumption of the risk operates to bar [plaintiff's] action."

The Court of Appeal also concluded that the local "ordinance did not impose a duty of care upon skiers irrespective of Knight v. Jewett." We granted plaintiff's petition to review the issue of the ordinance's effect.

II. DISCUSSION

In Knight, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, the plaintiff sued for injuries the defendant inflicted on her during an informal touch football game. We considered how the adoption of comparative negligence in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 affected the doctrine of assumption of risk in a sports setting. Only three justices signed the plurality opinion in Knight, but Justice Mosk wrote a concurring opinion generally agreeing with its analysis. (Knight, supra, 3 Cal.4th at pp. 321-322, 11 Cal.Rptr.2d 2, 834 P.2d 696 (conc. opn. of Mosk, J.).) More recently, we unanimously restated the basic principles of Knight's lead opinion as the controlling law. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538, 541, 34 Cal.Rptr.2d 630, 882 P.2d 347; see also Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 479-481, 63 Cal.Rptr.2d 291, 936 P.2d 70.)

We distinguished between (1) primary assumption of risk--"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"--and (2) secondary assumption of risk--"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 that duty." (Knight, supra, 3 Cal.4th at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Primary assumption of risk, when applicable, completely bars the plaintiff's recovery. (Id. at pp. 314-315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The doctrine of secondary assumption of risk, by contrast, "is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties." (Id. at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Whether primary or secondary assumption of risk applies "turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant's conduct breached a legal duty of care to plaintiff." (Ibid.) The test is objective; it "depends on the nature of the sport or activity in question and on the parties' general relationship to the activity" rather than "the particular plaintiff's subjective knowledge and awareness...." (Id. at p. 313, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

We noted that "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.)" (Knight, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.) This general rule, however, does not apply to coparticipants in a sport, where "conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.... In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant. [p] Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, ... 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.... [p] In some situations, however, the careless conduct of others is treated as an 'inherent risk' of a sport, thus barring recovery by the plaintiff." (Id. at pp. 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Courts should not "hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport" because "in the heat of an active sporting event ..., a participant's normal energetic conduct often includes accidentally careless behavior.... [V]igorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct." (Id. at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

For these reasons, the general test is "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 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, 11 Cal.Rptr.2d 2, 834 P.2d 696, fn. omitted.)

Applying this test, the trial court and the Court of Appeal concluded that primary assumption of risk bars this action. Plaintiff's petition for review presented the question whether a Placer County ordinance changes the test. In 1984, the Placer County Board of Supervisors enacted the Skier Responsibility Code of ...