CHEONG v. ANTABLIN

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Court of Appeal, Second District, Division 2, California.

Wilkie CHEONG, Plaintiff and Appellant, v. Drew R. ANTABLIN, Defendant and Respondent.

No. B089295.

Decided: October 09, 1996

Gordon, Edelstein, Krepack, Grant, Felton & Goldstein, and Joshua M. Merliss, Los Angeles, for Plaintiff and Appellant. Horvitz & Levy, David S. Ettinger and Christine A. Pagac, Encino;  Bollington and Roberts and Wayne Hunkins, Long Beach, for Defendant and Respondent.

Appellant Wilkie Cheong appeals from a judgment entered after the trial court granted summary judgment in favor of respondent Drew Antablin.   In this case, we are asked to determine whether the primary assumption of the risk defense enunciated in Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696, applies to bar a skier from recovering from a fellow skier on a negligence cause of action.   We hold that it does.

FACTS AND PROCEDURAL BACKGROUND

Appellant and respondent, a skier of 14 or 15 years experience, had skied together on many occasions during the course of their 17–year friendship.   On April 11, 1991, appellant and respondent were skiing down a slope at Alpine Meadows Ski Resort when they collided.   According to respondent's declaration, he was skiing faster than his comfort level and too fast for existing conditions.   He turned to his right in order to slow down but unintentionally collided with appellant.   However, he did not consider his skiing to be reckless.   In deposition testimony, appellant also testified that respondent's skiing was not reckless.   As a result of the collision, appellant suffered a shattered fibula and a shattered tibia.

Appellant filed a complaint for general negligence on March 10, 1992.   In his answer to the complaint, respondent raised the affirmative defense of assumption of the risk.   On April 20, 1994, respondent filed a motion for summary judgment, which was denied.   On June 28, 1994, respondent filed a renewed motion for summary judgment, which the trial court granted on August 26, 1994.   This appeal followed.

CONTENTIONS

Appellant contends that (1) the doctrine of primary assumption of the risk does not apply to the facts of this case, (2) the assumption of the risk defense does not apply because respondent violated a statutory duty owed to appellant, and (3) the assumption of the risk defense cannot arise by virtue of a local county ordinance.

DISCUSSION

1. Standard of Review

 Summary judgment is granted if all the submitted papers show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established.  (Code Civ.Proc., § 437c, subd. (n)(2);  see Rowe v. Superior Court (1993) 15 Cal.App.4th 1711, 1724, 19 Cal.Rptr.2d 625.)   Once the defendant's burden is met, the burden shifts to the plaintiff to show that a triable issue of fact exists as to that cause of action.  (Ibid.)  In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.  (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674, review den.)   We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.  (Walker v. Blue Cross of California (1992) 4 Cal.App.4th 985, 990, 6 Cal.Rptr.2d 184.)   In making this determination, the moving party's affidavits are strictly construed while those of the opposing party are liberally construed.   (Ibid.)

 “When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.”  (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395, 36 Cal.Rptr.2d 418, review den.)

2. Knight v. Jewett

In Knight v. Jewett, supra, the California Supreme Court analyzed the application of the assumption of risk doctrine in the wake of the comparative fault principles set forth in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   In Knight, despite plaintiff's caution to defendant to play more carefully during a touch football game, the defendant collided with plaintiff and stepped on her hand.   Plaintiff's little finger was subsequently amputated.   The trial court granted the defendant's motion for summary judgment, which was affirmed by the Supreme Court.

The Knight court recognized that Li v. Yellow Cab Co. “clearly contemplated that the assumption of risk doctrine was to be partially merged or subsumed into the comparative negligence scheme.”  (3 Cal.4th 296, 306, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics omitted.)   There are two distinctions to be made in assumption of the risk situations:  “(1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk—the category of assumption of risk that the legal commentators generally refer to as ‘primary assumption of risk’—and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty—what most commentators have termed ‘secondary assumption of risk.’ ”  (Id., at p. 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

 Under the primary assumption of the risk doctrine, the defendant owes no duty to the plaintiff, regardless of whether the plaintiff's undertaking of the activity was reasonable or unreasonable, and hence the lack of a duty of care bars recovery.  (Id., at pp. 309–310, 11 Cal.Rptr.2d 2, 834 P.2d 696).   Under the secondary assumption of the risk doctrine, the defendant owes a duty of care and is not entirely relieved of liability.   In that situation, the plaintiff's conduct in encountering the risk of injury is considered reasonable and liability is apportioned by comparative fault.   (Ibid.)  Thus, in secondary assumption of the risk cases, a jury may consider the plaintiff's action in engaging in an unusually risky sport, and whether the plaintiff's participation was reasonable.  (Id., at p. 314, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   Whether the defendant owes a duty to the plaintiff depends on “the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport” rather than due to any implied consent.  (Ibid.)

 In its examination of the sport of snow skiing, the Knight court found that risks inherent in the sport itself, such as moguls, are part of the sport of skiing, and a ski resort has no duty to eliminate them.   That is, “there is no duty of care to protect a sports participant against risks of injury that are inherent in the sport itself.”  (O'Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193, 35 Cal.Rptr.2d 467, italics omitted.)   However, the resort does have a duty to use due care to maintain its towropes in a safe working condition.  (Knight v. Jewett, supra, 3 Cal.4th 296, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The court cited other conduct considered inherent risks of the sport such as throwing a baseball carelessly and striking another player during a baseball game, and striking another basketball player with an elbow.  (Id., at p. 316, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

The court next addressed the issue of co-participant liability, recognizing that “it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport.”  (Id., at p. 318, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   The court distilled the following rule of law:  “․ a participant in an active sport breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.”   (Id., at p. 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

In affirming the trial court's grant of summary judgment in favor of the defendant, the Knight court concluded that the evidence showed that the defendant was, at most, careless or negligent in knocking over the plaintiff, but not so reckless as to be totally outside the range of the ordinary activity involved in the sport required to impose liability.

3. Ford v. Gouin

Knight 's companion case, Ford v. Gouin (1992) 3 Cal.4th 339, 344, 11 Cal.Rptr.2d 30, 834 P.2d 724, clarified that a co-participant in an active sport bears no liability for injuries resulting from his or her merely negligent conduct, whether the sport is “competitive,” such as touch football, or “cooperative,” such as water skiing.   In Ford, the defendant driver of a water ski boat was found to be negligent in steering the boat when the plaintiff was injured while skiing barefoot and backward.   The court noted that although a water skier is not involved in a “competitive” event, he or she “has undertaken vigorous, athletic activity, and the ski boat driver operates the boat in a manner that is consistent with, and enhances, the excitement and challenge of the active conduct of the sport.”  (Id., at pp. 344, 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)   Thus, in affirming summary judgment in favor of the defendant, the court found that “the general rule limiting the duty of care of a coparticipant in active sports to the avoidance of intentional and reckless misconduct, applies to participants engaged in noncompetitive but active sports activity, such as a ski boat driver towing a water-skier.”  (Id., at p. 345, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

4. Discussion

a. Whether Appellant and Respondent Were Coparticipants.

 Appellant urges that the principles enunciated in Knight and Ford do not apply to the facts of the instant case because the California Supreme Court contemplated a duty owed to a “coparticipant” in a “cooperative,” active sport.   That is, appellant argues, a football player actively interacts with other football players;  likewise, a water skier cannot ski without the assistance of the driver of the boat.   Accordingly, appellant urges, the sport of recreational snow skiing is neither “competitive” nor “cooperative,” since an individual need not rely on another skier to enjoy the sport.   Appellant contends that in this case, he and respondent were skiing separately and that respondent's actions were not necessary for appellant's own participation and enjoyment of the sport.   Therefore, he concludes, the respondent was not a “coparticipant.”

We disagree.   By limiting the definition of “participant” to those who must, rather than can, interact with each other during their pursuit of a sporting activity, appellant cuts too fine a distinction.   The Knight court instructs us that it is “the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport” which determines whether a duty of care is owed by the defendant.  (Knight, supra, 3 Cal.4th at p. 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.)   In reaching its conclusion that co-participants do not owe a duty of care in active sports, unless they act so recklessly that they are outside the bounds of the sport activity, Knight cited with approval Moe v. Steenberg (1966) 275 Minn. 448, 147 N.W.2d 587, in which the plaintiff ice skater was denied recovery for an injury incurred when another skater, who was skating backwards, accidentally tripped over her after she had fallen on the ice.   That situation is analogous to ours, where two skiers on the same slope collided with each other.

Collision with other skiers is considered an inherent risk of the sport.   The court in O'Donoghue v. Bear Mountain Ski Resort, supra, 30 Cal.App.4th 188, 192, 35 Cal.Rptr.2d 467 stated, “Skiers can expect to encounter ․ other skiers ․ and myriad other hazards which must be considered inherent in the sport of skiing.”  (See, also, Danieley v. Goldmine Ski Associates (1990) 218 Cal.App.3d 111, 123, 266 Cal.Rptr. 749 [dangers inherent in the sport of skiing include collisions with other skiers, citing Mich.Stat.Ann. § 18.483(22)(2) ].)

The recent case of Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 53 Cal.Rptr.2d 657 (review den.) is also instructive.   In that case, the court held that collisions between ice skaters in group skating sessions are inherent risks of the sport of figure skating and that the primary assumption of the risk doctrine as set forth in Knight v. Jewett operated to bar recovery by a plaintiff who was injured where the defendant's blade cut her arm during a practice session.   The court specifically rejected the plaintiff's argument that Knight does not apply to “solo” figure skating, an argument similar to that advanced by appellant here.   We are not persuaded by appellant's argument that the court's reasoning in Staten was flawed because it did not consider the relationship of the parties to the activity.   The court stated:  “[Plaintiff] was skating on a practice ice with a number of other skaters, all engaged in bettering themselves in an active sporting activity, and whose proximity to one another created certain risks of collision.”  (Id., at p. 1633, 53 Cal.Rptr.2d 657.)   Indeed, the Staten court stated, “If figure skating may be analogized to snow skiing, another sport in which one acts alone and ‘teamless' but in the proximity of others also so engaged, the skiing cases uniformly hold that one skier assumes the risk of collision with another.  [Citations.]”  (Id., at p. 1634, 53 Cal.Rptr.2d 657.)

In Freeman v. Hale, supra, 30 Cal.App.4th 1388, 36 Cal.Rptr.2d 418, the court held indirectly that a skier does not have a duty to avoid an inadvertent collision with a fellow skier under primary assumption of the risk principles.   While that case did not directly address whether a skier is a co-participant for the purposes of primary assumption of the risk, the conclusion that a skier is a co-participant is implied.   The direct holding under the facts of Freeman was that primary assumption of the risk did not apply where the defendant skier consumed excessive amounts of alcohol, since drinking is not an activity ordinarily involved in skiing.   The court stated that the defendant skier did not have a duty to avoid an inadvertent collision with the plaintiff fellow skier, but did have a duty to avoid increasing the risk of such a collision through excessive alcohol intake.  (Id., at p. 1396, 36 Cal.Rptr.2d 418.)   In the instant case, it is undisputed that respondent was not skiing recklessly when he injured appellant, and that he did not intend to hit appellant.   Accordingly, respondent did not engage in conduct outside the range of ordinary skiing as did the defendant in Freeman.   In a similar vein, Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134, 40 Cal.Rptr.2d 249 (review den.) stated in dicta that golfers on a golf course are co-participants and the primary assumption of the risk defense would apply where a golfer was hit by an errant ball.

We are not persuaded by appellant's citation to cases involving application of the primary assumption of the risk defense in favor of ski resort operators.   (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 45 Cal.Rptr.2d 855;  O'Donoghue v. Bear Mountain Ski Resort, supra, 30 Cal.App.4th 188, 35 Cal.Rptr.2d 467;  Danieley v. Goldmine Ski Associates, supra, 218 Cal.App.3d 111, 266 Cal.Rptr. 749.)   Additionally, appellant's reliance on the depublished case of Handelman v. Mammoth Mountain Ski Area (1993) 19 Cal.Rptr.2d 126 is improper.

Recreational skiing includes certain risky activities, such as avoiding trees and lift towers, negotiating moguls, and avoiding collisions with other skiers.   Part of the allure of recreational skiing includes the camaraderie and socializing involved in riding up the lifts and skiing down the mountain runs or trails with friends in mutual enjoyment of nature and of the physical activity and skill required for the sport.   We conclude that appellant and respondent, who had traveled to the ski resort together, and had on several occasions in their 17–year relationship, as on this particular one, skied together, were co-participants in the sport as contemplated by Knight.   Respondent did not act so recklessly as to bring him outside the bounds of the sports activity, and accordingly the defense of primary assumption of the risk operates to bar appellant's action.

b. Whether Respondent Violated a Statutory Duty Owed to Appellant.

 Appellant urges this court to consider the Placer County Skier Responsibility Code (Placer Code),1 a Bar Approved Jury Instruction (BAJI), and the Evidence Code to impose upon respondent a duty of care irrespective of Knight v. Jewett.

Placer Code section 12.131 “Definitions” states, in part, that “ ‘[i]nherent risks of skiing’ is hereby defined to include, but not be limited to, those dangers or conditions which are an integral part of the sport of skiing, including, but not limited to, changing weather conditions, variation or steepness of terrain, snow or ice conditions, surface or subsurface conditions, whether man-modified or not, bare spots, creeks, gullies, forest growth or rocks, stumps, lift towers and other structures and their components, collision with other skiers and a skier's failure to ski within the skier's own ability.”  (Italics added.)

Placer Code section 12.132 “Assumption of Risk” states:  “Any individual or group of individuals who engage in the sport of skiing of any type, including but not limited to alpine and nordic, or any similar activity within the boundaries of a ski area including entry for the purpose of observing any skiing or similar activity, shall assume and accept the inherent risks of such activities insofar as the risks are reasonably obvious, foreseeable or necessary to the activities.   Skiers who ski in any area not designated for skiing within the ski area control boundary, or who ski outside of a posted area boundary, assume the risks thereof.”

Placer Code section 12.134 “Skier Duties—Infraction” provides, in part:  “Skiers shall have the following duties, a violation of which shall constitute an infraction:  1.   It shall be unlawful for any person to ski faster than is safe and it shall be the duty of all skiers to ski in a safe and reasonable manner, under sufficient control to be able to stop or avoid other skiers or objects.”   Placer Code section 12.135(3) “Skier Duties—General” places a duty upon a skier to “not overtake any other skier except in such a manner as to avoid contact with the overtaken skier.”

Violation of an infraction results in a maximum fine of $100.

Evidence Code section 669 states:  “(a) The failure of a person to exercise due care is presumed if:  (1) He violated a statute, ordinance, or regulation of a public entity;  (2) The violation proximately caused death or injury to person or property;  (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent;  and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”

BAJI No. 4.70, which is intended to be used in actions “based upon a claim of reckless misconduct by a co-participant in an active sporting event,” provides that “[a] co-participant in an active sport is not subject to liability for an injury resulting from conduct in the course of the sport that is merely accidental, careless, or negligent.” 2

Appellant urges that the Placer Code, under Evidence Code section 669, creates a duty of care on the part of defendant to overcome the assumption of the risk defense.   Appellant argues that Placer Code section 12.134(1) does not conflict with Placer Code section 12.132, which provides that a skier in a ski area “shall assume and accept the inherent risks of such activities” because the “Skier Responsibility Code, taken as a whole, was clearly intended to protect local ski area operators from liability for skier injuries, and not negligent skiers.”

Appellant cannot have it both ways.   If the intent of the statute is to protect the local ski area operators, then the ordinance was not designed to create a duty of care for the benefit of appellant.   For Evidence Code section 669 to apply, appellant must show that “[t]he person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”   Accordingly, by his own admission, appellant cannot rely on the Placer Code to create a duty of care.

Appellant also argues that Placer Code section 12.132 “Assumption of Risk” does not apply because (a) the field of tort liability is preempted by state law under California's “supremacy clause” in article 11, section 7 of the California Constitution;  (b) Placer Code section 12.132 conflicts with the duty created by Placer Code section 12.134;  and (c) the intent of sections 12.131 and 12.132 is to protect and limit the liability of the ski area operators.   Again, appellant's argument works against him.   If, as appellant urges, legal chaos would result if each county or municipality were to pass its own laws regarding immunity, comparative or contributory negligence, contribution, and assumption of the risk, so, too, would chaos result if each municipality sought to regulate questions of duty.   Therefore, under appellant's reasoning, a local ordinance cannot supersede the duty analysis of Knight.  (See Goodwin v. Reilley (1985) 176 Cal.App.3d 86, 96, 221 Cal.Rptr. 374 [question of liability depends on traditional principles of tort law, regardless of defendant's violation of statute].)

Moreover, appellant's attempt to negate the assumption of the risk section of the Placer Code by virtue of its inconsistency with the duty section, works just as well in the other direction.   The express assumption of the risk section is consistent with Knight v. Jewett and the duty section is not;  on that ground, we find that appellant's argument fails.  Schmitz v. Cannonsburg Skiing Corporation (1988) 170 Mich.App. 692, 428 N.W.2d 742 does not assist appellant.   That case held that certain dangers, including collisions with skiers, are inherent to the sport of skiing;  that is, the assumption of the risk clause in the Michigan statute “renders the reasonableness of the skiers' or the ski area operator's behavior irrelevant.”  (Id., 428 N.W.2d at p. 744.)

Accordingly, we conclude that the Placer County ordinance did not impose a duty of care upon skiers irrespective of Knight v. Jewett.

During the pendency of this appeal Zubrick v. Ford (1996) 48 Cal.App.4th 1834, 56 Cal.Rptr.2d 494 was issued.   On November 4, 1996, a request for depublication was filed.   Therefore, the opinion is not yet final.   The Third District held that the Placer Skier Code enumerated certain duties for skiers, the breach of which raises a presumption of negligence. (Id., at p. 1836, 56 Cal.Rptr.2d 494.)   We disagree with the result and reasoning of Zubrick.   The Zubrick court relied on Shahinian v. McCormick (1963) 59 Cal.2d 554, 565, 30 Cal.Rptr. 521, 381 P.2d 377 for the proposition that the Placer Skier Code established a duty of care in favor of appellant.   In Shahinian, plaintiff water-skier was hit by the driver of his boat.   The Zubrick court cited Shahinian for its holding that the water-skiing ordinance at issue prohibiting speeds in excess of 5 miles per hour within 100 feet of persons engaged in swimming or skiing, was intended to protect skiers such as the plaintiff.   However, Shahinian is a 33–year–old case which predates Li v. Yellow Cab, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 and Knight v. Jewett, supra, 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 and analyzes assumption of the risk in terms, such as actual knowledge of the risk, which have since become disfavored.   Nor is there any evidence that the water-skier ordinance contained an assumption of the risk clause as is contained in the Placer Skier Code.   Therefore, we accord Shahinian very limited persuasive value.   Furthermore, although Zubrick cites to the concurring opinion of Justice Kennard in Ford v. Gouin, supra, 3 Cal.4th at page 363, 11 Cal.Rptr.2d 30, 834 P.2d 724, the majority stated that it did not “share her views of the assumption of risk doctrine set forth in her concurring opinion in this case․” (Ford v. Gouin, supra, 3 Cal.4th at p. 351, fn. 6, 11 Cal.Rptr.2d 30, 834 P.2d 724.)

The Zubrick court also makes the unsupported statement that “the Skier Code does not alter the Knight rule, or, contrary to a claim by defendant, does it alter any burden of proof,” (Zubrick, supra, 48 Cal.App.4th at p. 1838, 56 Cal.Rptr.2d 494) an argument with which we have previously disagreed.   Finally, Zubrick dismisses that part of the Placer Code which places upon skiers the assumption of inherent risks of skiing such as “collision with other skiers and a skier's failure to ski within the skier's own ability,” by asserting the clause conflicts with a state statute, section 669, and is therefore preempted.   That is, according to Zubrick, the “common law rules of assumption of risk [are] inapplicable to this suit.”   As previously discussed, we have reached the opposite conclusion that the Placer Code has not created a duty of care on the part of skiers under section 669, and that a local ordinance cannot supersede the duty analysis of Knight v. Jewett, supra, 3 Cal.4th at p. 296, 11 Cal.Rptr.2d 2, 834 P.2d 696.

DISPOSITION

The judgment is affirmed.

 ATTACHMENT

FOOTNOTES

1.   A copy of the ordinance is attached to this opinion.

2.   Without citation to authority, the use note states:  “Do not use this instruction if the defendant has violated an applicable statute.”

NOTT, Justice.

BOREN, P.J., and FUKUTO, J., concur.

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