Ford v. Gouin

• Decision Date: 21 February 1990
• Docket Number: No. A043117,A043117
• Citation: 266 Cal.Rptr. 870,6 Cal.App.4th 379
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 227 Cal.App.3d 1175, 234 Cal.App.3d 684, 6 Cal.App.4th 379 227 Cal.App.3d 1175, 234 Cal.App.3d 684, 6 Cal.App.4th 379 Larry C. FORD, Plaintiff/Appellant, v. Jack GOUIN, et al., Defendant/Respondent.

Page 870

266 Cal.Rptr. 870

Previously published at 227 Cal.App.3d 1175, 234 Cal.App.3d 684, 6 Cal.App.4th 379

227 Cal.App.3d 1175, 234 Cal.App.3d 684, 6 Cal.App.4th 379

Larry C. FORD, Plaintiff/Appellant, v. Jack GOUIN, et al., Defendant/Respondent.

No. A043117.

Court of Appeal, First District, Division 2, California.

Feb. 21, 1990.

Rehearing Denied March 22, 1990.

Review Granted May 23, 1990.

Eric D. Carlyle, Law Offices of Eric D. Carlyle, San Jose, for plaintiff/appellant, Larry C. Ford.

Jonathan L. Lee and Roberta M. Knapp, Robinson & Wood, Inc., San Jose, for defendant/respondent, Jack Gouin.

PETERSON, Associate Justice.

This action raises the issue of whether reasonable implied assumption of the risk remains a viable defense to an action for negligence after the adoption of comparative fault. We join the majority of those California appellate courts heretofore considering this question and hold that it does.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 1983, appellant Larry C. Ford was injured when, while water-skiing on a narrow channel in the Sacramento River delta, he collided with a tree limb overhanging the waterway. As a result, appellant suffered severe head injuries. At the time of the accident, appellant was skiing backward and barefoot.

The boat towing appellant was driven by respondent Jack Gouin. In April 1984, appellant filed a complaint against respondent and others for the injuries he sustained as a result of the accident.

In April 1988, respondent filed a motion for summary judgment. He claimed that the doctrine of reasonable implied assumption of the risk (hereafter sometimes called RIAR) constituted a complete defense to appellant's action. After briefing by the parties, the trial court agreed and entered judgment in favor of respondent. Appellant then timely filed the present appeal.

II. DISCUSSION

Appellant first claims that the defense of RIAR no longer exists and has been subsumed by the adoption of comparative negligence. Our analysis compels us to disagree.

Most commentators recognize three types of assumption of the risk: (1) express, (2) unreasonable implied, and (3) reasonable implied. (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503.) Express assumption of the risk arises when a plaintiff, in advance, gives consent to relieve a defendant of a legal duty and to take his chances from a known risk. (See, for example, Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 8-10, 236 Cal.Rptr. 181.) Unreasonable implied assumption of the risk exists when a plaintiff carelessly or negligently chooses to encounter a known risk. (Gonzalez v. Garcia, supra, 75 Cal.App.3d at pp. 880-881, 142 Cal.Rptr. 503.) RIAR arises when a plaintiff's reasonable conduct in encountering a known danger raises the inference that he has agreed to relieve the defendant of his duty of care. (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102, 243 Cal.Rptr. 536.)

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court abolished the " 'all-or-nothing' " rule of contributory negligence and replaced it with a system of comparative negligence. In so doing, the court discussed the effect of its ruling on the defense of assumption of the risk. "[W]e have recognized in this state that [assumption of the risk] overlaps ... contributory negligence to some extent and in fact is made up of at least two distinct defenses. 'To simplify greatly, it has been observed ... that in one kind of situation, to wit, where a plaintiff unreasonably [emphasis in original] undertakes to encounter a specific known risk imposed by a defendant's negligence, plaintiff's conduct, although he may encounter that risk in a prudent manner, is in reality a form of contributory negligence.... Other kinds of situations within the doctrine of assumption of risk are those, for example, where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him. Such a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.' [Citations.] We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence. [Citation.]" (Id. at pp. 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226, emphasis added.)

Li had no direct effect on express assumption of the risk. It remains a complete defense to an action based upon negligence. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, fn. 3, 255 Cal.Rptr. 755.) Unreasonable implied assumption of the risk, on the other hand, clearly was merged into comparative negligence as a result of the court's decision in Li.

The Supreme Court, since Li, has not ruled on the effect of the comparative fault system there adopted on RIAR. Several appellate courts have examined the issue with contradictory results.

The first reported case to examine the issue was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, decided by a panel of the Fifth Appellate District. That court concluded RIAR had been abolished by Li. (Id. at pp. 169-171, 191 Cal.Rptr. 578.) The court noted that under Li a plaintiff whose implied assumption of the risk was unreasonable would only have his recovery reduced to the extent his own lack of care contributed to the injury. Conversely, if RIAR continued to exist after Li, a plaintiff whose assumption of the risk was reasonable would be barred from recovery. Thus, a principal rationale of the Segoviano court's holding was that the elimination of RIAR in the comparative fault system Li established was necessary to avoid punishing reasonable conduct. (Id. at p. 170, 191 Cal.Rptr. 578.)

The Fourth District Court of Appeal, in Ordway v. Superior Court, supra, (discussed further, post ) examined the Segoviano decision as principally grounded on this reasonable vis-a-vis unreasonable conduct of plaintiff analysis.

Segoviano had interpreted the " 'held to agree' " language of Li, emphasized above, to mean "expressly" agrees; i.e., that Li 's citing of Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 104 Cal.Rptr. 566 supports the conclusion the Li court only retained assumption of the risk as a defense in the " 'pure' " comparative negligence system it adopted where the risk is expressly assumed by plaintiff. Fonseca stated: "[I]f the [plaintiff's] conduct be deemed unreasonable, it constitutes both assumption of risk and contributory negligence and, as the latter, may be asserted." (28 Cal.App.3d at p. 369, 104 Cal.Rptr. 566, emphasis added.) Segoviano construed this emphasized language of Fonseca to imply that reasonable conduct of a plaintiff may not be asserted as an assumption of the risk defense. Following this analysis, Segoviano held that the defense of implied assumption of the risk is abolished in our comparative fault system, post Li; and that the defendant is only relieved of a duty of care, barring recovery, when plaintiff "expressly agrees to assume the risk...." (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at pp. 169-170, 191 Cal.Rptr. 578.)

The Segoviano rationale seems weakened by its further reliance on the law of Florida, in view of subsequent developments in that state. Blackburn v. Dorta (Fla.1977) 348 So.2d 287, in Segoviano 's words, "completely abolished implied assumption of the risk as a defense under [Florida's] comparative negligence law." (143 Cal.App.3d at p. 170, 191 Cal.Rptr. 578.)

Florida, like California in Li, adopted a comparative fault system by decision of its Supreme Court. (Hoffman v. Jones (Fla.1973) 280 So.2d 431.)

Blackburn, supra, overbroadly analyzed Li as holding express assumption of the risk is a viable defense, and "implied assumption of risk is equivalent to and should be treated like contributory negligence." (348 So.2d at p. 289, fn. 3.) This language, of course, ignored Li 's refusal to find that risk assumption overlapped negligence where plaintiff's conduct was interpreted to relieve defendant of his duty of care.

Blackburn said: "It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry and upon which we express no opinion herein. [Citation.] Included within the definition of express assumption of risk are ... situations in which actual consent exists such as where one voluntarily participates in a contact sport." (348 So.2d at p. 290, emphasis added.)

This last emphasized language of Blackburn was revisited by the Florida Supreme Court in Kuehner v. Green (Fla.1983) 436 So.2d 78. Kuehner involved an assumption of the risk defense where plaintiff sued to recover damages for injuries sustained in a karate sparring match. "Express assumption of risk, as it applies in the context of contact sports, rests upon the plaintiff's voluntary consent to take certain chances. [Citation.] This principle may be better expressed in terms of waiver. When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken.... [p] ... If it is found that the plaintiff recognized the risk and proceeded to participate in the face of such danger the defendant can properly raise the defense of express assumption of risk." (Id. at p. 80, emphasis in original.)

Kuehner concluded that the jury should determine if plaintiff " 'actually consented' " to confront the dangers of karate match competition by first determining if plaintiff "subjectively appreciated the risk giving rise to the injury." (436 So.2d at p. 80, emphasis in original.)

Kuehner in effect seems to have merely recategorized the defense of...