Krol v. Sampson

• Decision Date: 13 February 1991
• Docket Number: No. A047631,A047631
• Citation: 278 Cal.Rptr. 164,6 Cal.App.4th 310
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 227 Cal.App.3d 724, 234 Cal.App.3d 579, 6 Cal.App.4th 310 227 Cal.App.3d 724, 234 Cal.App.3d 579, 6 Cal.App.4th 310 Mark KROL et al., Plaintiffs and Appellants, v. Richard SAMPSON et al., Defendants and Respondents.

Page 164

278 Cal.Rptr. 164

Previously published at 227 Cal.App.3d 724, 234 Cal.App.3d 579, 6 Cal.App.4th 310

227 Cal.App.3d 724, 234 Cal.App.3d 579, 6 Cal.App.4th 310

Mark KROL et al., Plaintiffs and Appellants, v. Richard SAMPSON et al., Defendants and Respondents.

No. A047631.

Court of Appeal, First District, Division 3, California.

Feb. 13, 1991.

As Modified Feb. 25, 1991.

Rehearing Denied March 14, 1991.

Review Granted May 2, 1991.

Jim Larsen, Gillin, Jacobson & Ellis, Berkeley, for plaintiffs and appellants.

Ralph E. Mendell, Campbell, Warburton, Britton Fitzsimmons & Smith, San Jose, Gennaro A. Filice, III, Jennifer Walker, Hardin, Cook, Loper, Engel & Bergez, Oakland, J. Thomas Deal, San Francisco, for defendants and respondents.

CHIN, Associate Justice.

Mark Krol (hereafter plaintiff) sued in negligence for injuries suffered in a recreational league softball game. ¹ As plaintiff ran from first base to second during a double play, he was struck in the face by the ball, suffering broken facial bones and loss of his right eye. His negligence claims against the opposing team, its corporate sponsor, and the player who threw the ball were concluded by summary judgment. On appeal, plaintiff contends the defense of reasonable implied assumption of risk was eliminated by California's adoption of a comparative negligence system. Plaintiff further argues that even if assumption of risk is still a viable defense, triable issues of material fact precluded summary judgment.

We conclude that reasonable implied assumption of risk was not abrogated by the comparative negligence system instituted in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226. The doctrine of assumption of risk survives as a defense which can negate the duty element of a negligence cause of action. We also find the undisputed facts establish that plaintiff reasonably assumed the risk of being struck by the ball in the course of the game. Therefore, we affirm the judgment.

I. THE FACTS

Preliminarily, we note the familiar rules governing review of a summary judgment. Summary judgment is proper only if there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) On review, we strictly construe the moving parties' papers and liberally construe those of the opposing parties to determine if they raise a triable issue of material fact. (Howell v. State Farm Fire & Casualty Co. (1990) 218 Cal.App.3d 1446, 1448, 267 Cal.Rptr. 708.)

Before his injury in May 1988, plaintiff had played recreational league slow pitch softball for four to five years. He played first base and was his team's starting first baseman during the 1988 season. Plaintiff played for two teams in different programs that year, so he regularly played on Wednesday and Friday nights. Both of his teams played in leagues composed of the least talented, though not necessarily least experienced, players. ² Plaintiff wore shin guards to protect against the "extremely painful" impact of a ground ball against his shins. As a first baseman, plaintiff himself was part of double play combinations, receiving the throw from the second baseman.

The play that resulted in plaintiff's injury started after he reached first base on a hit. With fewer than two outs, the next batter hit a ground ball towards the shortstop. Plaintiff realized a double play was a possibility. As soon as the ball was hit, he ran as fast as he could straight down the base line towards second base. He assumed the ball would be thrown to second and knew he would be out if the second baseman caught the throw. He saw the second baseman in one motion catch the ball and turn to throw to first.

Plaintiff intended to slide to get out of the way of the throw. However, the ball struck him in the face before he had a chance to slide. He did not see the ball coming at him. The impact broke facial bones and split his right eye. He now wears a glass eye.

II. DISCUSSION

When our Supreme Court adopted a " 'pure' " comparative negligence system for California in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the court also abolished assumption of risk as a defense "to the extent that it is merely a variant of the former doctrine of contributory negligence...." (Id., at p. 829, 119 Cal.Rptr. 858, 532 P.2d 1226.) As such, assumption of risk is "subsumed under the general process of assessing liability in proportion to negligence." (Ibid.)

Li noted, though, there are at least two distinct forms of assumption of risk. " '... [W]here a plaintiff unreasonably 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.]" (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824-825, 119 Cal.Rptr. 858, 532 P.2d 1226, quoting Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246, 53 Cal.Rptr. 545, 418 P.2d 153.) ³

Two years later, in reaffirming the so-called "fireman's rule," the Supreme Court discussed the principle underlying that rule in broadly favorable terms. "[T]he fireman's rule is based on a principle as fundamental to our law today as it was centuries ago. The principle ... is applicable to our entire system of justice--one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby. We have consistently applied this concept in our recent pronouncements in other cases of basic tort doctrine.... [p] The principle denying recovery to those voluntarily undertaking the hazard causing injury is fundamental in a number of doctrines, including nullification of the duty of care, satisfaction of the duty to warn because the hazard is known, contributory negligence, and assumption of risk...." (Walters v. Sloan (1977) 20 Cal.3d 199, 204, 142 Cal.Rptr. 152, 571 P.2d 609, emphasis added.)

After Li, only one published decision has held that implied assumption of risk plays no part in California's comparative negligence system: Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578. In that case the plaintiff was injured in a flag football game. The plaintiff knew that players might be knocked to the ground during the game, as happened to him, and injured as a result. The court found such knowledge did not render the decision to play unreasonable, which would be contributory negligence that could reduce a recovery. (Id., at p. 175, 191 Cal.Rptr. 578.) The court said the "decision to play should not be deemed negligence on his part, absent proof that he lacked the skill or physical capacity to play the game or suffered from some physical or emotional impairment which would have made his decision to play in the game unreasonable." (Ibid.) ⁴ "Anyone who participates in an organized, socially approved recreational activity is fully aware of the possibility of injury due to a violation of the rules of play, yet the decision to play may be perfectly reasonable." (Ibid.)

However, Segoviano interpreted Li 's reference to situations "where the plaintiff is 'held to agree' to relieve the defendant of an obligation of reasonable conduct" as being limited to express agreements. (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at p. 168, 191 Cal.Rptr. 578.) Segoviano therefore held that the separate defense of implied assumption of risk is abolished under comparative negligence. (Id., at pp. 168-170, 191 Cal.Rptr. 578.) The court stated it could "find no basis in reason or equity" for barring recovery to a plaintiff who reasonably assumes a risk, when plaintiffs who negligently assume risks only have their recovery reduced to the extent their lack of care contributes to injury. (Id., at p. 170, 191 Cal.Rptr. 578.) The court believed that elimination of reasonable implied assumption of risk "avoids punishing reasonable conduct. [Citations.]" (Ibid.)

Segoviano represents a minority position among the California Courts of Appeal. No published decision has endorsed its reasoning, and it has been roundly criticized. (See Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d at pp. 1477-1478, 255 Cal.Rptr. 755; King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1315-1316, 253 Cal.Rptr. 140; Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 103-105, 243 Cal.Rptr. 536.) By contrast, the decision in Ordway has received broad support in published opinions. (See Cohen v. McIntyre (1991) 226 Cal.App.3d 801, 277 Cal.Rptr. 91; Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 562-563, 260 Cal.Rptr. 1; Von Beltz, supra, 207 Cal.App.3d at pp. 1477-1478, 255 Cal.Rptr. 755; King, supra, 205 Cal.App.3d at pp. 1315-1316, 253 Cal.Rptr. 140.)

In Ordway, a professional jockey was severely injured during a race after a competitor interfered with another horse without looking and contrary to a rule of the sport. The court issued a peremptory writ directing a judgment against the plaintiff, finding she assumed the risk of injury as a matter of law. In reaching that result, the court concluded that "reasonable implied assumption of risk is only 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. Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for...