Segoviano v. Housing Authority

Citation191 Cal.Rptr. 578,143 Cal.App.3d 162
CourtCalifornia Court of Appeals
Decision Date19 May 1983
PartiesFrancisco SEGOVIANO, Plaintiff and Appellant, v. HOUSING AUTHORITY OF STANISLAUS COUNTY, Defendant and Respondent. Civ. 6299 (F00163).
OPINION

FRANSON, Acting Presiding Justice.

INTRODUCTION

This appeal presents the question of what part, if any, the defense of reasonable implied assumption of the risk (RIAR) plays in our comparative fault system today. RIAR exists when a plaintiff acts reasonably in voluntarily encountering a known risk of injury. It is to be contrasted with another form of implied assumption of risk--where a plaintiff acts unreasonably in confronting a known risk of injury. There is, of course, a third type of assumption of the risk, express, when plaintiff, in advance, orally or in writing, consents to relieve the defendant of a legal duty and to take his or her chances of injury from the known risk. (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503; Prosser on Torts (4th ed. 1971) § 68, p. 440; Rest.2d Torts, § 496A, coms. c, d; Schwartz, Comparative Negligence (1974) p. 157.)

We hold that RIAR plays no part in the comparative negligence system of California; it is neither a bar to plaintiff's recovery on the theory that it forecloses the existence of a duty of care by the defendant toward the plaintiff nor is it a partial defense justifying allocation of a portion of the fault for the accident to the plaintiff on the theory that he or she was contributorily negligent in confronting the risk. It is only when the defendant proves that the plaintiff's decision to participate in the activity was unreasonable that a jury may allocate damages between the plaintiff and the defendant. Such an allocation is permissible because the defendant has proved that the plaintiff was negligent. Whether the plaintiff's decision to expose himself or herself to the risk of injury was unreasonable under all of the circumstances will be a question for the jury unless it can be held as a matter of law that the decision was reasonable.

THE CASE BELOW

This is a personal injury action. The jury returned a verdict in favor of the plaintiff assessing him 30 percent fault and assessing 70 percent fault to the defendant. Plaintiff appeals contending the jury wrongly allocated a portion of the fault to him. He also challenges the trial court's denial of his motion for a new trial based on inadequate damages.

Plaintiff separated his left shoulder while playing in a flag football game sponsored by defendant Stanislaus County Housing Authority. The game was organized by Jose Santana, recreational coordinator for defendant.

The players were provided belts with two plastic snap-on flags. Under the rules, an offensive player's progress could only be stopped by pulling one of the flags. Players also were prohibited from pushing, holding or otherwise using their hands. The reason for the rules was to avoid injury to the participants.

During the game, plaintiff was running along the sidelines attempting to score a touchdown when Santana, who was playing on the opposite team, pushed him out of bounds by pushing the back of his shoulders. Plaintiff fell and seriously injured his left shoulder.

Over his objection, plaintiff was cross-examined by the defendant about his experience in playing flag football and his knowledge of the rules of the game. Plaintiff indicated from his prior experience that he knew that some physical contact was involved and that occasionally people fell down during the game. He was also aware that during blocking, some pushing might be involved. Finally, plaintiff was asked, "Did you also know in November of 1975 that as a result of the various activities I have just listed [blocking, collisions while running, etc.] ... that injuries sometimes might result because of these different types of conduct?" Plaintiff replied, "Yes."

Plaintiff made a motion in limine to exclude any "assumption of the risk" type evidence, and during trial he objected to such evidence. Plaintiff also made a motion for a directed verdict on the issue of his negligence. The basis for these motions and objections was that the evidence was uncontradicted that all plaintiff agreed to do was to participate in a game of flag football and to advance the ball as an offensive player. The mere fact he had knowledge that players would violate the rules at times by pushing with their hands when blocking and that a player could fall during the course of the game and sustain injury was not a basis for assessing any fault to him.

Interpreting Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, the trial court ruled that although the defendant had pleaded the defense of assumption of risk, it was "assumed" (subsumed) within the defense of contributory negligence. The court denied plaintiff's motion for a directed verdict and said it would instruct on comparative negligence, but it would not permit any reference by defense counsel to assumption of risk.

The jury returned a verdict after it had requested the trial court to reread the instructions on negligence. The jury found that Jose Santana was negligent and that his negligence was a legal cause of plaintiff's injury. The jury further found that plaintiff was also negligent in playing the game and that his negligence contributed as a legal cause to his injury.

The medical bills incurred as a result of the accident were stipulated to be $2,292.84. Plaintiff also sustained $381 in lost earnings. The jury awarded plaintiff total damages of $4,000 but since the plaintiff was found 30 percent at fault, he was awarded a net amount of $2,800.

DISCUSSION

Plaintiff contends it was prejudicial error for the trial court to instruct on contributory negligence since the record is devoid of any evidence that he was negligent either in his conduct during the game or in his decision to participate in the game. Although the defendant was told not to mention "assumption of the risk," the defendant was able to bring the defense into the case under the guise of contributory negligence.

Defendant, on the other hand, contends that plaintiff's voluntary decision to participate in the game with full knowledge of the possibility of injury should result in a proportionate allocation of fault to the plaintiff even though his decision to participate in the game was reasonable. 1 Defendant concedes that plaintiff's conduct in playing the game was not negligent.

Two related questions must be addressed: First, does RIAR remain as a separate defense to plaintiff's claim for damages under Li? If so, it was error to instruct the jury on contributory negligence. Second, if RIAR is no longer a separate defense in negligence actions, may RIAR still be considered by the jury as part of the contributory negligence defense?

Contributory negligence and assumption of risk are separate and distinct defenses. (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245, 53 Cal.Rptr. 545, 418 P.2d 153; Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271, 32 Cal.Rptr. 193, 383 P.2d 777; Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368, 104 Cal.Rptr. 566.) Assumption of risk involves the negation of defendant's duty of care toward the plaintiff whereas contributory negligence is a defense to a breach of such a duty. Assumption of risk may be deemed to involve perfectly reasonable conduct on plaintiff's part whereas contributory negligence never does. Assumption of risk embraces the voluntary or deliberate incurring of known peril whereas contributory negligence frequently involves the inadvertent failure to notice danger. (Fonseca v. County of Orange, supra, 28 Cal.App.3d at pp. 368-369, 104 Cal.Rptr. 566; 2 Harper & James, Law of Torts (1956) § 22.2, p. 1201.)

The courts have recognized an area of overlap between the two doctrines, so that identical facts may give rise to both defenses. (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at pp. 245-246, 53 Cal.Rptr. 545, 418 P.2d 153; Fonseca v. County of Orange, supra, 28 Cal.App.3d at p. 369, 104 Cal.Rptr. 566.) The overlap has been described by Prosser as follows: "[T]he plaintiff's conduct in encountering a known risk may be in itself unreasonable, because the danger is out of all proportion to the advantage which he is seeking to obtain.... If that is the case, his conduct is a form of contributory negligence, in which the negligence consists in making the wrong choice and voluntarily encountering a known unreasonable risk. In such cases, it is clear that the defenses of assumption of risk and contributory negligence overlap, and are as intersecting circles, with a considerable area in common, where neither excludes the possibility of the other." (Prosser on Torts (3d ed. 1964) § 67, p. 451; cited in Fonseca v. County of Orange, supra, 28 Cal.App.3d at p. 369, 104 Cal.Rptr. 566.)

In Li v. Yellow Cab Co., supra, our Supreme Court abolished the overlap in negligence actions. Specifically, the court stated:

"As for assumption of risk, we have recognized in this state that this defense overlaps that of 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 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...

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22 cases
  • Rini v. Oaklawn Jockey Club
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 18 Noviembre 1988
    ...... Restatement (Second) of Torts Sec. 496A comment c, 3. Segoviano v. Housing Authority, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, 579 (1983); Malinder, 538 A.2d at 518 ......
  • Krol v. Sampson, A047631
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    • California Court of Appeals
    • 13 Febrero 1991
    ...... 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 ......
  • Ford v. Gouin
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    • California Court of Appeals
    • 21 Febrero 1990
    .......         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 ......
  • Knight v. Jewett, S019021
    • United States
    • United States State Supreme Court (California)
    • 24 Agosto 1992
    ...... 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 ......
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1 books & journal articles
  • Beyond Unreasonable
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 99, 2021
    • Invalid date
    ...Blueprint, 38 U.S.F. L. Rev. 599, 599 (2004). [182]Id. at 625. [183]Floyd, 466 N.W.2d at 923. [184]Id. [185] Segoviano v. Hous. Auth., 191 Cal. Rptr. 578, 588 (Cal. Ct. App. [186] J. Russell VerSteeg, A Case for a Bill Recognizing Primary Assumption of Risk as Limiting Liability for Persons......

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