Knight v. Jewett

• Decision Date: 24 August 1992
• Docket Number: No. S019021,S019021
• Citation: 11 Cal.Rptr.2d 2,834 P.2d 696,3 Cal.4th 296
• Court: California Supreme Court
• Parties: , 834 P.2d 696 Kendra KNIGHT, Plaintiff and Appellant, v. Michael JEWETT, Defendant and Respondent

Page 2

11 Cal.Rptr.2d 2

3 Cal.4th 296, 834 P.2d 696

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

No. S019021.

Supreme Court of California

Aug. 24, 1992.

Steven H. Wilhelm, San Diego, for plaintiff and appellant.

Daley & Heft, Sarah H. Mason, Dennis W. Daley, Joseph M. Hnylka and Patricia A. Shaffer, Solana Beach, for defendant and respondent.

GEORGE, Justice.

In this case, and in the companion case of Ford v. Gouin, 3 Cal. 4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724, we face the question of the proper application of the "assumption of risk" doctrine in light of this court's adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. Although the Li decision itself addressed this issue, subsequent Court of Appeal decisions have differed in their interpretation of Li 's discussion of this point. We granted review to resolve the conflict among the Courts of Appeal.

I

We begin with a summary of the facts of this case, as set forth in the declarations and deposition transcripts submitted in support of and in opposition to defendant's motion for summary judgment.

On January 25, 1987, the day of the 1987 Super Bowl football game, plaintiff Kendra Knight and defendant Michael Jewett, together with a number of other social acquaintances, attended a Super Bowl party at the home of a mutual friend. During half time of the Super Bowl, several guests decided to play an informal game of touch football on an adjoining dirt lot, using a "peewee" football. Each team had four or five players and included both women and men; plaintiff and defendant were on opposing teams. No rules were explicitly discussed before the game.

Five to ten minutes into the game, defendant ran into plaintiff during a play. According to plaintiff, at that point she told defendant "not to play so rough or I was going to have to stop playing." Her declaration stated that "[defendant] seemed to acknowledge my statement and left me with the impression that he would play less rough prospectively." In his deposition, defendant recalled that plaintiff had asked him to "be careful," but did not remember plaintiff saying that she would stop playing.

On the very next play, plaintiff sustained the injuries that gave rise to the present lawsuit. As defendant recalled the incident, his team was on defense on that play, and he jumped up in an attempt to intercept a pass. He touched the ball but did not catch it, and in coming down he collided with plaintiff, knocking her over. When he landed, he stepped backward onto plaintiff's right hand, injuring her hand and little finger.

Both plaintiff and Andrea Starr, another participant in the game who was on the same team as plaintiff, recalled the incident differently from defendant. According to their declarations, at the time plaintiff was injured, Starr already had caught the pass. Defendant was running toward Starr, when he ran into plaintiff from behind, knocked her down, and stepped on her hand. Starr also stated that, after knocking plaintiff down, defendant continued running until he tagged Starr, "which tag was hard enough to cause me to lose my balance, resulting in a twisting or spraining of my ankle."

The game ended with plaintiff's injury, and plaintiff sought treatment shortly thereafter. After three operations failed to restore the movement in her little finger or to relieve the ongoing pain of the injury, plaintiff's finger was amputated. Plaintiff then instituted the present proceeding, seeking damages from defendant on theories of negligence and assault and battery.

After filing an answer, defendant moved for summary judgment. Relying on the Court of Appeal decision in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536, defendant maintained that "reasonable implied assumption of risk" continues to operate as a complete defense after Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (hereafter Li ), and that plaintiff's action was barred under that doctrine. In this regard, defendant asserted that "[b]y participating in [the touch football game that resulted in her injury], plaintiff ... impliedly agreed to reduce the duty of care owed to her by defendant ... to only a duty to avoid reckless or intentionally harmful conduct," and that the undisputed facts established both that he did not intend to injure plaintiff and that the acts of defendant which resulted in plaintiff's injury were not reckless. In support of his motion, defendant submitted his own declaration setting forth his version of the incident, as summarized above, and specifically stating that he did not intend to step on plaintiff's hand or to injure her. Defendant also attached a copy of plaintiff's deposition in which plaintiff acknowledged that she frequently watched professional football on television and thus was generally familiar with the risks associated with the sport of football, and in which she conceded that she had no reason to believe defendant had any intention of stepping on her hand or injuring her.

In opposing the summary judgment motion, plaintiff first noted that, in contrast to the Ordway decision, the Court of Appeal decision in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578 specifically held that the doctrine of "reasonable implied assumption of risk" had been eliminated by the adoption of comparative fault principles, and thus under Segoviano the basic premise of defendant's summary judgment motion was untenable and plaintiff was entitled to have the lawsuit proceed under comparative fault principles.

Furthermore, plaintiff maintained that even were the trial court inclined to follow the Ordway decision, there were numerous disputed material facts that precluded the granting of summary judgment in favor of defendant. First, plaintiff noted there was a clear dispute between defendant's and plaintiff's recollection of the specific facts of the play in which plaintiff was injured, and, in particular, of the details of defendant's conduct that caused plaintiff's injury. She claimed that under the facts as described by plaintiff and Starr, defendant's conduct was at least reckless.

Second, plaintiff vigorously disputed defendant's claim that, by participating in the game in question, she impliedly had agreed to reduce the duty of care, owed to her by defendant, to only a duty to avoid reckless or intentionally harmful conduct. Plaintiff maintained in her declaration that in view of the casual, social setting, the circumstance that women and men were joint participants in the game, and the rough dirt surface on which the game was played, she anticipated from the outset that it was the kind of "mock" football game in which there would be no forceful pushing or hard hitting or shoving. Plaintiff also asserted that the declarations and depositions of other players in the game, included in her opposition papers, demonstrated that the other participants, including defendant shared her expectations and assumptions that the game was to be a "mellow" one and not a serious, competitive athletic event. ¹ Plaintiff claimed that there had been no injuries during touch football games in which she had participated on previous occasions, and that in view of the circumstances under which the game was played, "[t]he only type of injury which I reasonably anticipated would have been something in the nature of a bruise or bump."

In addition, in further support of her claim that there was at least a factual dispute as to whether she impliedly had agreed to assume the risk of injury from the type of rough play defendant assertedly engaged in, plaintiff relied on the portion of her declaration in which she stated that (1) she specifically had told defendant, immediately prior to the play in question, that defendant was playing too rough and that she would not continue to play in the game if he was going to continue such conduct, and (2) defendant had given plaintiff the impression he would refrain from such conduct. Plaintiff maintained that her statement during the game established that a disputed factual issue existed as to whether she voluntarily had chosen to assume the risks of the type of conduct allegedly engaged in by defendant.

In his reply to plaintiff's opposition, defendant acknowledged there were some factual details--"who ran where, when and how"--that were in dispute. He contended, however, that the material facts were not in dispute, stating those facts were "that plaintiff was injured in the context of playing touch football."

After considering the parties' submissions, the trial court granted defendant's motion for summary judgment. On appeal, the Court of Appeal, recognizing the existing conflict in appellate court decisions with regard to the so-called "reasonable implied assumption of risk" doctrine, concluded that Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, rather than Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, should be followed, and further concluded that under the Ordway decision there were no disputed material facts to be determined. The Court of Appeal, holding that the trial court properly had granted summary judgment in favor of defendant, affirmed the judgment.

As noted, we granted review to resolve the conflict among Court of Appeal decisions as to the proper application of the assumption of risk doctrine in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.

II

As every leading tort treatise has explained, the assumption of risk doctrine long has caused confusion both in definition and application, because the phrase "assumption of risk" traditionally has been used in a number of very different factual settings involving analytically distinct legal concepts. (See, e.g., Prosser &...