Knight v. Jewett

• Decision Date: 27 November 1990
• Docket Number: No. D010463,D010463
• Citation: 3 Cal.App.4th 1022,275 Cal.Rptr. 292
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 232 Cal.App.3d 1142, 3 Cal.App.4th 1022 232 Cal.App.3d 1142, 3 Cal.App.4th 1022 Kendra KNIGHT, Plaintiff and Appellant, v. Michael JEWETT, Defendant and Respondent.

Page 292

275 Cal.Rptr. 292

Previously published at 232 Cal.App.3d 1142, 3 Cal.App.4th 1022

232 Cal.App.3d 1142, 3 Cal.App.4th 1022

Kendra KNIGHT, Plaintiff and Appellant, v. Michael JEWETT, Defendant and Respondent.

No. D010463.

Court of Appeal, Fourth District, Division 1, California.

Nov. 27, 1990.

Review Granted Feb. 14, 1991.

[232 Cal.App.3d 1146] [3 Cal.App.4th 1026] Steven H. Wilhelm, San Diego, for plaintiff and appellant.

Daley & Heft, Sarah H. Mason and Dennis W. Daley, Solana Beach, for defendant and respondent.

TODD, Acting Presiding Justice.

Kendra Knight appeals a summary judgment granted in favor of Michael Jewett in her lawsuit against Jewett for negligence and assault and battery stemming from a touch football game in which she was injured. Knight contends (1) it was error to apply the doctrine of assumption of risk to defeat the negligence cause of action, (2) it was error to apply the doctrine of assumption of risk to defeat the assault and battery cause of action and (3) there were triable issues of fact that should have precluded the granting of summary judgment.

FACTS

On January 25, 1987, Knight and several other individuals, including Jewett, gathered at the Vista home of Ed McDaniels to observe the Super Bowl football game. Knight and Jewett were among those who decided to play a game of co-ed touch football during half-time using a "peewee" football often used by children. Apparently, no explicit rules were written down or discussed before the game, other than the requirement that to stop advancement of the player with the ball it was necessary to touch that player above the waist with two hands. Knight and Jewett were on different teams.

Previously, Knight had played touch football and frequently watched football on television. Knight voluntarily participated in the Super Bowl half-time game. It was her understanding that this game would not involve forceful pushing, hard hitting or hard shoving during the game. She had never observed anyone being injured in a touch football game before this incident.

About five to ten minutes after the game started, Jewett ran into Knight during a play and afterward Knight asked Jewett not to play so rough. Otherwise, she told him, she would stop playing.

On the next play, Knight suffered her injuries, when she was knocked down by Jewett and he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight's hand.

According to Knight's version, her teammate, Andrea Starr had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett in pursuit of Starr, came from behind Knight and knocked her down. Knight put her arms out to break the fall and Jewett ran over her, stepping on her hand. Jewett continued to pursue Starr for another 10 to 15 feet before catching up with her and tagging her. Starr said the tag was rough enough to cause her to lose her balance and fall and twist her ankle.

Jewett did not intend to step on Knight's hand and did not intend to hurt her.

DISCUSSION

I

Knight contends it was error to apply the doctrine of assumption of risk to the facts of this case and negate her cause of action for negligence. We disagree.

It is fundamental that a plaintiff in a negligence action can prevail only if he or she establishes the defendant owed the plaintiff a duty to use reasonable care and breached that duty. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) The doctrine of assumption of the risk is "another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)

We begin with a short history of California cases which have explored the defense of assumption of the risk after our Supreme Court handed down its decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. 858, 532 P.2d 1226, abolishing the defense of contributory negligence and replacing it with a system of comparative negligence. Li raised considerable doubt as to the survival of assumption of the risk as a tort defense, except for express contractual assumption. (See, e.g., Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 156.)

The first reported post-Li case in this area was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, in which the plaintiff was injured during a flag football game. In Segoviano, the Fifth Appellate District concluded that reasonable implied assumption of the risk had been abolished by Li:

"We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law. It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery. In our view, this is the only rational meaning to be given to the principles articulated in Li. The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery." (Id. at pp. 169-170, 191 Cal.Rptr. 578.)

The position of the court in Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, has found little support in subsequent cases. ¹ The Third Division of our appellate district issued the first of these cases, Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900, in which the lead opinion, in dictum, affirmed the continued viability of an assumption of the risk defense and questioned the reasoning of Segoviano. Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium, and one of the interposed defenses was assumption of risk. The appellate court did not reach this issue because it concluded summary judgment had been improvidently granted on the basis of an insufficient declaration.

In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, a case involving injuries to a veterinary assistant, the Third Appellate District held the defense of assumption of the risk was applicable even though the claim was based upon strict liability under the dog-bite statute. The Nelson court said a veterinarian or his assistant is aware dogs may bite during treatment and "has assumed this risk as part of his or her occupation." (Id. at p. 715, 211 Cal.Rptr. 668.)

In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612, a Second Appellate District case, the court said Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not abrogate the doctrine of implied reasonable assumption of the risk. In Neinstein, the plaintiff had occupied a seat in an unscreened area of Dodger Stadium and was struck by a batted ball. The appellate court upheld the granting of summary judgment in favor of the Dodgers, noting the plaintiff consented to take her own chances that she would not be injured when she voluntarily elected to sit in the unscreened area and "was sufficiently warned of the risk by common knowledge of the nature of the sport...." (Neinstein, supra, 185 Cal.App.3d at p. 184, 229 Cal.Rptr. 612.)

The definitive statement of the law of "reasonable implied assumption of the risk" is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, another decision by the Third Division of this appellate district. Ordway involved injuries suffered by a professional jockey during a race when other jockeys "crossed over" without sufficient clearance. The Ordway court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable assumption of the risk, and concluded Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine. Rejecting Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the Ordway court held that reasonable implied assumption of risk remained, after Li, a complete defense. (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536.) ²

We join the clear California trend in adopting the Ordway analysis and conclusion that--notwithstanding the adoption of comparative negligence--reasonable implied assumption of risk remains a viable defense. We conclude the doctrine of reasonable implied assumption of risk is a logical allocation of risk among those who have impliedly agreed in advance. "Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, original italics.) In other words, it is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances. As Dean Prosser explained:

"[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly...