Ordway v. Superior Court

Citation243 Cal.Rptr. 536,198 Cal.App.3d 98
Decision Date29 January 1988
Docket NumberNo. G005171,G005171
CourtCalifornia Court of Appeals
PartiesHomer ORDWAY, Petitioner, v. SUPERIOR COURT of Orange County, Respondent; Judy CASELLA et al., Real Parties in Interest.
Sheehan & Booser and Michael C. Booser, Van Nuys, for petitioner

CROSBY, Associate Justice.

Does reasonable implied assumption of risk remain a viable defense after the adoption of comparative fault? We hold it does.


Judy Casella, a veteran jockey who had ridden in 500 professional horse races without incident, was thrown from her mount and further injured when the equine fell and rolled over her during a quarterhorse race at Los Alamitos Race Course on January 3, 1983. The tragic chain of events began when Over Shadow, owned by petitioner Homer Ordway, tangled with another steed, Speedy Ball, who then stumbled in front of Casella's horse. The California Horse Racing Board determined the jockey riding Over Shadow violated a board rule by "crossing over without sufficient clearance, causing interference," and he was suspended for five racing days. Alleging "negligence, carelessness and unlawful conduct," Casella sued the riders, trainers, and owners of Over Shadow and Speedy Ball.

Ordway moved for summary judgment. The motion was denied, and Ordway sought extraordinary relief in this court. We denied the writ application, and he petitioned the Supreme Court. That court granted review and, citing Turcotte v. Fell (1986) 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, a decision by New York's highest court, transferred the matter to us with directions to issue an alternative writ. We did so and now follow with a peremptory writ of mandate. 1


The initial question presented in this petition is whether the doctrine of reasonable implied assumption of risk survives in the era of comparative fault. We had occasion to touch on the subject once before (Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 202 Cal.Rptr. 900), but a resolution of the matter was not essential to that decision. It is now, however; and the answer is, "Yes."

Courts and legal scholars have traditionally recognized three forms of assumption of risk. Express assumption of risk is exactly what the term describes: Where "the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing," the potential plaintiff has expressly assumed the risk of injury. (Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 7-8, 236 Cal.Rptr. 181.)

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. A second variety of implied assumption of risk is labeled unreasonable. (Rudnick v. Golden West Broadcasters, supra, 156 Cal.App.3d at pp. 798-799, 202 Cal.Rptr. 900.) After a brief prefatory digression, we will explain the importance of the distinction between them in determining the rights of the parties.

The relationship between the concepts of implied assumption of risk and contributory negligence has been the source of some confusion. The two doctrines are quite separate in one sense, but overlap in another. More than thirty years ago, our Supreme Court explained the basic differences between them as follows: "The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a [plaintiff's] lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care. [Citation.] It is available when there has been a voluntary acceptance of a risk and such acceptance, whether express or implied, has been made with knowledge and appreciation of the risk." Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162, 265 P.2d 904; Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243-244, 53 Cal.Rptr. 545, 418 P.2d 153.)

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the court "recognized [that the doctrine of assumption of risk] 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 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.]" ( Id., at p. 824, 119 Cal.Rptr. 858.) The court determined that unreasonable assumption of risk should be merged with the theory of contributory negligence under comparative fault principles; i.e., while an injured party who unreasonably assumed a risk may recover, the damages will nonetheless be reduced by the percentage of fault attributed to him or her. ( Id., at p. 826, 119 Cal.Rptr. 858.)

Li did not specifically determine whether a defense based on reasonable implied assumption of risk should survive the adoption of comparative fault, and the court has not had occasion to confront the issue since. Several other divisions of the Court of Appeal have, however.

In Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr 578, a player was injured during an amateur flag football game when an opponent, in violation of the rules, pushed him out of bounds. Ruling on an in limine motion, the trial court precluded the defendant, the institutional sponsor of the game, from relying on assumption of risk to defeat the plaintiff's claim. The plaintiff prevailed, but the jury discounted his award by 30 percent under comparative fault instructions.

Rejecting the notion "that a plaintiff who has reasonably assumed a risk may not recover damages because that form of assumption of risk negates defendant's duty of care to the plaintiff" ( id., at p. 168, 191 Cal.Rptr. 578), Segoviano held only express assumption of risk remained a viable defense after Li. The appellate panel conceded Li explicitly merged only unreasonable assumption of risk into the concept of contributory negligence; but it concluded that where "the plaintiff's conduct [is] entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery. Elimination of [reasonable implied assumption of risk] as a separate defense avoids punishing reasonable conduct." (Id., at p. 170, 191 Cal.Rptr. 578.) Accordingly, the court not only reversed the judgment but also held the plaintiff's recovery could not be reduced under comparative fault principles because his implied assumption of the risk of injury in a flag football game was reasonable and, as a matter of law, provided no basis for apportionment of the damages. 2

Having studied the problem anew, we remain unpersuaded by Segoviano 's holding. In our view, that opinion turned the law on its head. If plaintiff reasonably consented to participate in a touch football game, how could defendant's sponsorship of the contest be any less reasonable? Plaintiff and defendant had an equal opportunity to anticipate the over-exuberance of one of the participants and the potential for injury. There is no principled basis upon which any responsibility should be assigned to the defendant under those circumstances. The defendant merely provided plaintiff with the chance to play; he was the one who chose to risk an injury. There is also a strong policy basis for absolving the defendant in such circumstances: encouragement of persons and entities to provide opportunities to engage in sports and recreational activities without fear of suits by the participating beneficiaries.

The correct analysis is this: The doctrine of 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 recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.

The Segoviano court may have been misled because the distinction between the "reasonable" and "unreasonable" plaintiff is superficially anomalous: The former's civil action is barred while the latter's is allowed to go to judgment, reduced only in proportion to fault. But the explanation has nothing to do with rewarding or punishing a plaintiff, as Segoviano suggests. Rather, it is found in the expectation of the defendant. He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them. The defendant must however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against those may result in liability.

For example, borrowing from an old legal saw, "[Because a] drunken man is as much entitled to a safe street, as a sober one, and much more in need of it" (Robinson v. Pioche (1855) 5 Cal. 460, 461), sidewalks...

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