KROL v. SAMPSON (1991)

 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․  [¶] 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 recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.”  (Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 104, 243 Cal.Rptr. 536.)

The Ordway court was not persuaded by the concern expressed in Segoviano over the different treatment accorded “reasonable” and “unreasonable” plaintiffs.   As Ordway noted, the difference has nothing to do with rewarding or punishing plaintiffs.   Instead, the explanation is based on the expectations 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.”  (Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 105, 243 Cal.Rptr. 536.)   Thus, the Ordway court concluded that the doctrine of reasonable implied assumption of risk, where applicable, constitutes a complete defense to a personal injury action because it reduces a defendant's duty of care.  (Id., at p. 107, 243 Cal.Rptr. 536;  see also Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183–184, 229 Cal.Rptr. 612.)

We believe that Ordway 's analysis is correct.   The doctrine of assumption of risk has continuing validity in a comparative negligence system because the doctrine properly can qualify the existence and scope of the duty owed by a defendant to a plaintiff.

New York's highest court adopted this analysis after that state enacted a comparative negligence statute.  Turcotte v. Fell (1986) 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, a decision relied on by Ordway,⁵ endorsed using assumption of risk as a measure of a defendant's duty of care in a comparative negligence system.   The court stated that “determination of the existence of a duty and the concomitant scope of that duty ․ necessitate[s] an examination of plaintiff's reasonable expectations of the care owed him by others․   If a participant makes an informed estimate of the risks involved in the activity and willingly undertakes them, then there can be no liability if he is injured as a result of those risks.”  (Turcotte, supra, at p. 437, 510 N.Y.S.2d 49, 502 N.E.2d 964.)

Turcotte noted that assumption of risk in this sense is based on the plaintiff's implied consent to relieve the defendant of a legal duty.   In sporting events, the defendant's duty is “to make the conditions as safe as they appear to be.   If the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty.  [Citations.]   Plaintiff's ‘consent’ is not constructive consent;  it is actual consent implied from the act of the electing to participate in the activity [citation].”  (Turcotte v. Fell, supra, 68 N.Y.2d at p. 439, 510 N.Y.S.2d 49, 502 N.E.2d 964.)

The same view has been expressed in a leading treatise.   A defendant will be relieved of the duty which would otherwise exist “where the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation.   He may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances․  [H]e may enter a baseball park, sit in an unscreened seat, and so consent that the players may proceed with the game without taking any precautions to protect him from being hit by the ball.”  (Prosser & Keeton, The Law of Torts (5th ed. 1984) § 68, p. 481;  see also Rest.2d Torts, §§ 496A, com. c, ¶ 2, 496C, com. b, 50, com. b [“Taking part in a game manifests a willingness to submit to such bodily contacts or restrictions of liberty as are permitted by its rules or usages.”].)

Having determined that assumption of risk has a continuing role in comparative negligence law, we next consider what knowledge the plaintiff must have to support a negation of the defendant's duty because the plaintiff has assumed the risk.   Before the doctrine can be applied, “the victim must have not only general knowledge of a danger, but must have knowledge of the particular danger, that is, knowledge of the magnitude of the risk involved.”  (Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271, 32 Cal.Rptr. 193, 383 P.2d 777.)   The doctrine “applies only when the accident arises from a danger known to the victim before the accident, and where the evidence shows that the victim voluntarily chose to enter or to remain in the zone of known danger.   Actual, and not merely constructive, knowledge of the danger is required.”  (Id., at pp. 270–271, 32 Cal.Rptr. 193, 383 P.2d 777.)   But “[w]here the facts are such that the plaintiff must have had knowledge of the hazard, the situation is equivalent to actual knowledge, and there may be an assumption of the risk․”  (Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d at p. 244, 53 Cal.Rptr. 545, 418 P.2d 153;  Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 235, 282 P.2d 69;  Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 162, 265 P.2d 904;  Morton v. California Sports Car Club (1958) 163 Cal.App.2d 685, 688, 329 P.2d 967.)⁶

In the context of lawful athletic events, the general rule recognized by the vast majority of jurisdictions is that a voluntary participant assumes all risks incident to the contest which are obvious, though not necessarily the risk of injuries inflicted intentionally or recklessly.  (See Annot., Baseball Player's Right to Recover for Baseball–Related Personal Injuries from Nonplayer (1987) 55 A.L.R.4th 664;  Annot., Liability of Participant in Team Athletic Competition for Injury to or Death of Another Participant (1977) 77 A.L.R.3d 1300; 65A C.J.S., Negligence, § 174(6), pp. 302–303;  4 Am.Jur.2d, Amusements and Exhibitions, § 98, pp. 226–229.)   A similar rule was endorsed in Ordway, recognizing that the degree of risk to be anticipated varies from sport to sport.  “If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants—such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing—no cause of action can succeed based on a resulting injury.” ⁷  (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 111–112, 243 Cal.Rptr. 536, fn. omitted;  see also Chase v. Shasta Lake Union Sch. Dist. (1968) 259 Cal.App.2d 612, 616, 66 Cal.Rptr. 517 [baseball player injured by outfield obstruction:  “The risks assumed by a participant in a game are usually limited to its natural and ordinary risks;  if a danger, such as a defect in the premises, occurs outside the range of those inherent in the game, he assumes that danger only if he knows of it.”  (Fn. omitted.) ].)

In California, spectators injured by the ball during softball and baseball games invariably have their claims defeated by assumption of risk principles.   The earliest such case was Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 46 P.2d 144.   There, a 14–year–old girl was struck by a foul ball while seated in an unprotected section of the stands.   She admitted she knew she could be in danger of being struck by a batted ball.   In affirming the judgment following a directed verdict on the basis that the plaintiff assumed the risk, the court noted that “ ‘it is common knowledge that in baseball games hard balls are thrown and batted with such great swiftness they are liable to be thrown or batted outside the lines of the diamond, and spectators occupying positions which may be reached by such balls assume the risk of injury therefrom.’ ”  (Id., at p. 730, 46 P.2d 144.)

A directed verdict produced the same result in Brown v. San Francisco Ball Club (1950) 99 Cal.App.2d 484, 222 P.2d 19.   In Brown, the plaintiff apparently was hit by an errant throw which went into the stands instead of the first baseman's glove.   The plaintiff claimed she was ignorant of the game and its risks, but the court found the rule of Quinn applied nevertheless.   The court stated that the baseball “patron participates in the sport as a spectator and in so doing subjects himself to certain risks necessarily and usually incident to and inherent in the game;  risks that are obvious and should be observed in the exercise of reasonable care.   This does not mean that he assumes the risk of being injured by the proprietor's negligence but that by voluntarily entering into the sport as a spectator he knowingly accepts the reasonable risks and hazards inherent in and incident to the game.”  (Brown, supra, at p. 487, 222 P.2d 19.)

Although Brown contains language that seems to disregard whether the plaintiff actually knew the risk,⁸ the decision apparently was based on a conclusion that the plaintiff must have known the risk.  Brown discussed several decisions to this effect, and quoted with approval the following language from Brisson v. Minneapolis Baseball & Athletic Assn. (1932) 185 Minn. 507, 509–510, 240 N.W. 903:  “ ‘In our opinion no adult of reasonable intelligence, even with the limited experience of the plaintiff, could fail to realize that he would be injured if he was struck by a thrown or batted ball, such as are used in league games of the character which he was observing, nor could he fail to realize that foul balls were likely to be directed toward where he was sitting․   He could not hear the bat strike the ball many times without realizing that the ball was a hard object.   Even the sound of the contact of the ball with the gloves or mitts of the players would soon apprize him of that.   It is our opinion that the plaintiff, notwithstanding his alleged limited experience, must be held to have assumed the risk of the hazards to which he was exposed.’  [Citation.]”  (Brown v. San Francisco Ball Club, supra, 99 Cal.App.2d at p. 490, 222 P.2d 19.)

In Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 289 P.2d 282, the plaintiff was a chaperon for a girl's softball team.   During a pregame warm-up, the plaintiff went onto the field and was hit on the head by an errant throw from one of her team's players.   The plaintiff's claim was dismissed on a motion for a nonsuit on the basis of assumption of risk.   The plaintiff was familiar with softball and knew balls would be batted and thrown around during the warm-up.   However, she claimed she did not know that a ball would be thrown close enough to endanger her.   The court stated that the established rule that a spectator assumes the natural risk of being struck by thrown or batted balls “should be much more applicable where the injured person goes on the field of play and is, in effect, in the position of a participant.   The [plaintiff] here assumed such a position with full knowledge of the natural and inherent risks involved.”  (Id., at p. 734, 289 P.2d 282.) ⁹

Tavernier v. Maes (1966) 242 Cal.App.2d 532, 51 Cal.Rptr. 575 addressed assumption of risk when a second baseman's ankle was shattered by a sliding base runner in an informal, family softball game.   On appeal from a verdict for the defendant, the plaintiff argued that the jury should not have been instructed on assumption of risk.   The plaintiff conceded he knew and consented to the risk of being bumped and bruised by a base runner, but asserted he had “no knowledge of the particular risk which ensued—‘a scythe-like blow between the ankle and the knees from behind, and without warning ․ in circumstances which would call for a hook slide, if any slide at all was justified in this game.’ ”  (Id., at p. 542, 51 Cal.Rptr. 575.)   The court was not persuaded, and held that the jury was properly instructed.  (Id., at pp. 544, 554, 51 Cal.Rptr. 575.)

In discussing what evidence of knowledge is a prerequisite to assumption of risk, the court stated:  “It is obvious that the phrases ‘actual knowledge of the specific danger involved’, ‘knowledge of the particular danger’, or ‘knowledge of the magnitude of the risk involved’ do not connote that the victim had prescience that the particular accident and injury which in fact occurred was going to occur․   The specificity, particularity, and magnitude in question must refer to the scope and source of possible dangers.”   (Tavernier v. Maes, supra, 242 Cal.App.2d at p. 543, 51 Cal.Rptr. 575.)   Thus, the plaintiff's awareness that he could be bumped or bruised by bodily contact on a close play was sufficient to submit assumption of risk to the jury.  (Id. at p. 544, 51 Cal.Rptr. 575.) ¹⁰

Most recently, the court in Neinstein v. Los Angeles Dodgers, Inc., supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, revisited assumption of risk by baseball spectators and held that the doctrine still applies, notwithstanding the adoption of comparative negligence.  (Id., at p. 183, 229 Cal.Rptr. 612.)   The plaintiff alleged she developed breast cancer as a result of being hit by a foul ball while seated in an unscreened section of Dodger Stadium.   The court affirmed the summary judgment for defendant, saying, “where the plaintiff's conduct amounts to a release of the defendant's obligation of reasonable conduct, the assumption of risk doctrine continues to operate.”  (Ibid.)  The plaintiff had attended baseball games before, had seen balls hit into the stands, and admitted she was generally familiar with the game.

The court found the plaintiff “impliedly consented to take her own chances” by choosing an unprotected seat, and that she was “sufficiently warned of the risk by common knowledge of the nature of the sport and by the warning provided on the back of her ticket.”  (Id., at p. 184, 229 Cal.Rptr. 612, emphasis omitted.)   Because there is no indication the plaintiff actually read the warning on the ticket, Neinstein implicitly applied the rule that when the plaintiff must have known the risk, that is the same as actual knowledge for assumption of risk.   Thus, Neinstein joins the ranks of those cases which hold as a matter of law that “common knowledge” of the national pastime means that spectators assume the risk of being struck by the ball.

 With these precedents and principles in mind, we turn to consideration of plaintiff's contentions on this appeal.   Plaintiff argues the evidence was insufficient to support summary judgment based on assumption of risk.   He contends he could not have assumed the risk unless he knew the second baseman would throw to first base without looking to see where plaintiff was in the base path.   This is the specific risk plaintiff contends he would have to assume, and he explicitly denied knowing this risk in his declaration opposing summary judgment.   We disagree.

The denial contained in the declaration is disingenuous.   Plaintiff's declaration stated:  “At no time prior to being hit was I aware that the defendant, or someone in his position, might act as he did, throwing the ball from second base to first base with knowledge that a runner was coming to second base, without first looking to see that he was not throwing directly into the oncoming runner.”   But during his deposition five months earlier, plaintiff was asked if he believed the second baseman should look for the runner before throwing, and he responded:  “It all happened so fast, I don't know that you really can.”   The inference compelled by plaintiff's deposition testimony is that being a first baseman himself, having caught double play throws from second base, and knowing the speed with which a double play must be executed, plaintiff did not expect the second baseman to look for a runner before throwing to first.   Nonetheless, whether or not plaintiff expected the second baseman to look before throwing is not material to his assumption of the risk.

 The salient flaw in plaintiff's argument is the misconception of the pertinent risk.   While the plaintiff must have actual knowledge of the particular danger, that does not mean the plaintiff must anticipate the exact accident which occurs or the exact nature of the resulting injury.  (Baker v. Chrysler Corp. (1976) 55 Cal.App.3d 710, 718, 127 Cal.Rptr. 745;   Fuller v. State of California (1975) 51 Cal.App.3d 926, 941, 125 Cal.Rptr. 586;  Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61, 88 Cal.Rptr. 704;   Tavernier v. Maes, supra, 242 Cal.App.2d at p. 543, 51 Cal.Rptr. 575.)

As the cases discussed above make clear, one of the particular dangers inherent in the games of baseball and softball is the risk of being struck by the ball during the course of play.   This particular hazard is a matter of such common knowledge that in most of those decisions, the courts felt no compunction in finding the plaintiffs must have known the risk as a matter of law.

We need not resort to “common knowledge” here, though, because the evidence of plaintiff's awareness of the risk of being hit by batted and thrown balls is clear from the facts.   Plaintiff had played recreational league softball for four to five years and had personal experience with double plays.   He wore shin guards to protect against the “extremely painful” impact of ground balls.   He intended to slide into second base to get out of the way of the throw.   Where the uncontradicted facts are susceptible of only one legitimate inference, summary judgment is proper.  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112, 245 Cal.Rptr. 658, 751 P.2d 923.)   The only legitimate inference to be drawn from the facts adduced on summary judgment here is that plaintiff had actual knowledge of the particular risk of being struck and injured by the ball in the course of play.   If the fan in the stands necessarily assumes the risk of being struck and injured by a ball, no less can be expected of a knowledgeable and experienced participant in the game.

 Plaintiff also argues that by not sliding when he saw the second baseman turn to throw, his conduct demonstrates he unreasonably assumed the risk of being hit.   This argument misapprehends the time at which the known risks of a sport are assumed because it ignores the event that constitutes the implied consent to those risks.   As Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, correctly analyzed, the reasonableness of the plaintiff's conduct in playing a sport with inherent risks is measured at the time the plaintiff decides to play.  (Id., at p. 175, 191 Cal.Rptr. 578.)   The implied consent to take one's chances with the known risks of the sport is manifested by the decision to participate.   That is the event which negates the defendant's duty of care under the implied assumption of risk doctrine.   Plaintiff's decision to play was not unreasonable, that is to say it did not fall below the standard of care a person of ordinary prudence would exercise to avoid injury.  (Ibid.)  That the recognized danger occurred when the plaintiff might have avoided injury by sharper play ¹¹ neither negates the plaintiff's consent nor reimposes the defendant's duty.

 Plaintiff's last contention is that even if he assumed the risk, respondents still owed some residual, limited duty of care.   Plaintiff describes this as a duty to do that which is ordinarily and reasonably expected by the other participants.   From this premise, plaintiff argues there was no evidence the second baseman fulfilled his residual duty.   Plaintiff's argument simply reformulates the rule stated in Ordway that no claim for injuries can succeed when the defendant's actions were within the ordinary expectations of the participants.  (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 111–112, 243 Cal.Rptr. 536.)   Contrary to plaintiff's assertion, the evidence establishes that a throw by the second baseman to first base during a double play was well within plaintiff's expectation.   Thus, summary judgment of plaintiff's negligence action was proper.

Finally, we note that precluding liability for simple negligence in sporting contests, where the participants have actual knowledge of a sport's inherent risks, furthers the policy that active and vigorous participation in athletic endeavors should not be discouraged by the threat of litigation.  (See, e.g., Gauvin v. Clark (1989) 404 Mass. 450, 454, 537 N.E.2d 94, 96–97;  Kabella v. Bouschelle (App.1983) 100 N.M. 461, 465, 672 P.2d 290, 294;  Ross v. Clouser (Mo.1982) 637 S.W.2d 11, 14.)   Participation in recreational team sports is a socially desirable activity offering benefits to the participants and society as a whole.  (See Segoviano v. Housing Authority, supra, 143 Cal.App.3d at p. 175, 191 Cal.Rptr. 578.)   When an accidental injury such as plaintiff's occurs, it is unfortunate that the victim and family must bear the loss;  but the alternative is to turn recreational sports into grist for the mills of litigation.

The judgment is affirmed.

I reluctantly conclude the majority are correct in upholding the summary judgment.   I write separately to highlight some questions posed by the continued survival of reasonable implied assumption of the risk.

First, I agree we must apply the principles of reasonable implied assumption of the risk.   However, I reach this conclusion only because our Supreme Court has sent a strong signal that this doctrine survives the adoption of comparative negligence in this state.

The Supreme Court recently granted review in two cases where divided courts considered the continued viability of reasonable implied assumption of the risk.  (Harrold v. Rolling J Ranch (1990) 218 Cal.App.3d 36, 266 Cal.Rptr. 734, review granted May 23, 1990 (S014818);  Ford v. Gouin (1990) 217 Cal.App.3d 1606, 266 Cal.Rptr. 870, review granted May 23, 1990 (S014828).)  The parties completed briefing in those cases in August of 1990, and we can expect a controlling decision on this issue in the near future.   Consequently, I think it is too late to add to the debate on this already thoroughly examined issue, and believe the parties are better served by an accurate prediction of the result in the Supreme Court.

The Supreme Court has provided a compelling clue to that result in the procedural history of Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.   In Ordway the trial court refused to grant a defense motion for summary judgment on the basis of a reasonable implied assumption of risk defense.   The defendant sought extraordinary relief in the Court of Appeal.   That court denied the writ application and the defendant petitioned the Supreme Court.   The Supreme 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, transferred the matter to the Court of Appeal with directions to issue an alternative writ.   In Turcotte, New York's highest court held that reasonable implied assumption of the risk is a complete defense in a comparative negligence system.   Taking its cue from our Supreme Court, the Ordway court held that reasonable implied assumption of the risk is still a complete defense in California.  (Ordway, supra, 198 Cal.App.3d at p. 108, 243 Cal.Rptr. 536.)   The Supreme Court later denied review in Ordway.   (Id., at p. 112, 243 Cal.Rptr. 536.)

The Supreme Court sent a strong signal in Ordway that reasonable implied assumption of the risk survives Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   This is consistent with the majority position on the issue.   Consequently, despite my own doubts concerning the wisdom of the decision, I believe our Supreme Court will decide that reasonable implied assumption of the risk is still a viable defense in California.

Nevertheless, there is compelling authority for abolishing the doctrine of reasonable implied assumption of the risk altogether, and, at minimum, the doctrine should be applied grudgingly:  “The doctrine of assumption of risk, however it is analyzed and defined, is in most of its aspects a defendant's doctrine that restricts liability and so cuts down the compensation of accident victims.   It is a heritage of the extreme individualism of the early industrial revolution.   But quite aside from any questions of policy or of substance, the concept of assuming the risk is purely duplicative of other more widely understood concepts, such as scope of duty or contributory negligence․  [¶]  Except for express assumption of risk, therefore, the term and the concept should be abolished.   It adds nothing to modern law except confusion.”  (4 Harper & James, Law of Torts (2d ed. 1986) § 21.8, p. 259, fn. omitted.)

Turning to the facts of the present case, I also conclude defendants have established reasonable implied assumption of the risk as a matter of law.   However, the courts have been inconsistent in delineating the elements of this defense.   I write to point out some of those inconsistencies, in the hope that our Supreme Court might resolve them.

Citing Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777, the majority hold that before the doctrine will bar a negligence action “the victim must have not only general knowledge of a danger, but must have knowledge of the particular danger, that is, knowledge of the magnitude of the risk involved.”  (Id., at p. 271, 32 Cal.Rptr. 193, 383 P.2d 777, emphasis added.)   From this, the majority appear to conclude that “knowledge of the particular danger” is equivalent to “knowledge of the magnitude of the risk involved.”   Based on this reasoning, the majority further conclude—at least implicitly—that it is enough if the plaintiff has actual knowledge of the mechanism of the injury, but it is not necessary that he know the type and seriousness of the injuries which might occur.  (See maj. opn. at pp. 172, 173–174.)   I am not as sure as the majority that this is, or should be, the law.

In Shahinian v. McCormick (1963) 59 Cal.2d 554, 30 Cal.Rptr. 521, 381 P.2d 377—decided three months before Vierra—the Supreme Court described the requirements of the reasonable implied assumption of the risk doctrine differently than it did in Vierra.   The Shahinian court held that “[a]ctual knowledge of the particular risk and appreciation of the magnitude thereof are not interchangeable but are independent and essential elements of the doctrine.  [Citations.]   The two elements are distinct concepts, intended to convey two independent ideas to the jury.   Proper instructions should embody both concepts.”  (Shahinian, supra, at p. 567, 30 Cal.Rptr. 521, 381 P.2d 377.)   The standard instruction on assumption of the risk,¹ the Restatement of Torts,² and later cases ³ support the notion that there are two distinct elements to the doctrine.   Moreover, the Supreme Court has never expressly disavowed its statement in Shahinian that actual knowledge of the particular risk and appreciation of its magnitude are separate and distinct elements of assumption of the risk.

Although there is convincing authority that these two elements are separate requirements of the defense, the courts have not defined the difference between actual knowledge of a particular risk and appreciation of its magnitude.   None of the sports-related cases cited by the majority address this dichotomy.⁴  Instead, those cases seem to hold that when a participant in a sporting contest is injured by actions “within the ordinary expectations of the participants” his cause of action fails, no matter how serious or unexpected the resulting injury.⁵  (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 111–112, 243 Cal.Rptr. 536, fn. omitted.)   I am troubled by this rule of law because it ignores the fundamental dichotomy in the assumption of the risk doctrine.

In my view, the rule in sporting contests should address both elements of the assumption of the risk doctrine.   This would require that the plaintiff/participant have (1) actual knowledge of the particular risk involved, that is, actual knowledge of the mechanism which caused the injury (such as tackling in football, errant throws in baseball, aggressive riding in horse racing) and (2) actual knowledge of the magnitude of the particular risk, that is, actual knowledge of the type and seriousness of the injury which might result.⁶  (See Tavernier v. Maes, supra, 242 Cal.App.2d at p. 544, 51 Cal.Rptr. 575 [“If the accident and the resultant injury fall within general hazards ․ of which the victim had knowledge he may be found to have assumed the risk thereof.”].)  This rule addresses the two separate and independent elements necessary to establish reasonable implied assumption of the risk, and is also consistent with the general theory underlying the doctrine.

The theory underlying reasonable implied assumption of the risk is that the plaintiff reasonably, knowingly, and voluntarily agrees (albeit implicitly) to relieve the defendant of a duty of care.  (Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 563, 260 Cal.Rptr. 1;  Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102, 104, 243 Cal.Rptr. 536;  Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, 255 Cal.Rptr. 755.)   In my view, it is essential that the plaintiff know the scope of possible injuries if he is to “knowingly” relieve the defendant of a duty of care.   How can a plaintiff “knowingly” agree to relieve a defendant of a duty of care if he does not know something as fundamental as the extent of the peril to which he is exposing himself?

Moreover, the scope of possible injuries is an important factor in determining if a plaintiff unreasonably (i.e., negligently) decided to assume a risk.⁷  A plaintiff is negligent in assuming a risk “if the risk is of such magnitude as to outweigh what the law regards as the utility” of the activity.  (Rest.2d Torts, supra, § 291.)   In determining the magnitude of risk, the factfinder should consider “the extent of the harm likely to be caused to the interests imperiled.”  (Id., at § 293, subd. (c).)  “If the act is one which involves only a risk of some very slight harm to even an important interest, it may be justified, although a similar likelihood of a more serious harm would make the risk unreasonable.”  (Id., at § 293, com. c.)

The facts of a case cited by the majority demonstrate the common sense utility of the two part analysis I have suggested.   In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 229 Cal.Rptr. 612, the plaintiff alleged she developed breast cancer as a result of being hit by a foul ball while seated in an unscreened section of Dodger Stadium.  (Id., at p. 179, fn. 1, 229 Cal.Rptr. 612.)   The court concluded that reasonable implied assumption of the risk barred the plaintiff's action because she was aware she could be struck by a foul ball.  (Id., at pp. 183–184, 229 Cal.Rptr. 612.)   Remarkably, the court did not address the unusual nature of the alleged injury.   In my view, as a matter of common sense, a woman does not assume the risk of developing breast cancer when she attends a major league ball game.   She cannot be expected to know that this is the type of injury which might result from being struck by a ball, and, absent special knowledge, she does not implicitly assume that risk.   Neinstein's cause of action may—and probably should—have failed for other reasons, such as lack of legal duty or actual causation;  but of one thing I am certain:  Ms. Neinstein did not “assume the risk” of developing breast cancer when she chose an unscreened seat in Dodger Stadium.

Turning to the facts of the present case, I agree with the majority that, under traditional analysis, reasonable implied assumption of the risk bars appellant's action as a matter of law.   The second baseman's throw was within the ordinary expectations of the participants and thus “no cause of action can succeed based on a resulting injury.”  (Ordway v. Superior Court, supra, 198 Cal.App.3d. at pp. 111–112, 243 Cal.Rptr. 536, fn. omitted.)

Although the issue is much closer, I conclude assumption of the risk also bars appellant's action even if we apply the two part test outlined in this concurring opinion.   Appellant must be charged with actual knowledge of the particular risk he faced;  that is, the possibility he might be struck by a thrown ball.  (Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 244, 53 Cal.Rptr. 545, 418 P.2d 153;  Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 488;  maj. opn. at pp. 170, 173–174.)   The more difficult question is whether there is a triable issue of fact appellant had actual knowledge of the magnitude of the risk;  that is, whether he knew losing an eye, though not apt to happen, was within the range of possibilities, and would happen if the conditions were ripe for it.  (Sperling v. Hatch, supra, 10 Cal.App.3d at p. 61, 88 Cal.Rptr. 704.)   Although the amateur nature of the game—and the nature of softball itself—suggest that the participants might expect less serious injuries than those faced by players in the big leagues, the facts of this case establish that appellant must have known a thrown softball could result in serious injuries, including the loss of an eye.   As the majority have noted, appellant is an experienced amateur player who is part of a double play combination himself;  moreover, he wore shinguards to protect against the “extremely painful” impact of ground balls.   From this, I must conclude that appellant was acutely aware of the serious risk posed by a thrown softball, and knew that this risk included the possibility of losing an eye.

For the foregoing reasons, I concur in the judgment.

FOOTNOTES

1.   In the same action, plaintiff's wife, appellant Pam Krol, sued respondents for loss of consortium resulting from her husband's injuries.   Her loss of consortium claim requires a showing of a negligent or intentional injury to her spouse.  (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 408, 115 Cal.Rptr. 765, 525 P.2d 669.)   Plaintiffs did not contend the injury to Mark Krol was intentional.   Therefore, Pam Krol's loss of consortium claim rises or falls with her husband's negligence claim against respondents.  (Mueller v. J.C. Penney Co. (1985) 173 Cal.App.3d 713, 723, 219 Cal.Rptr. 272.)

2.   Plaintiff played four or five years for a “D” league team in the Concord men's softball program.   That team, for a time, had been moved up to the “C” league.   Teams are moved up to the next higher league when they win their league's championship.   The 1988 season was plaintiff's first in the Pleasant Hill “C” league, the lowest level in that program.   Plaintiff's injury occurred during a Pleasant Hill “C” league game.

3.   Li 's reliance on Grey v. Fibreboard Paper Products Co., supra, 65 Cal.2d 240, 53 Cal.Rptr. 545, 418 P.2d 153, has some significance in assessing whether reasonable implied assumption of risk survives in California's comparative negligence system.  Grey dealt with determining which form of assumption of risk applied to the plaintiff in that case.   The court found the plaintiff arguably had unreasonably proceeded to encounter a known risk, which the court stated could be contributory negligence.  (Id., at pp. 245–246, 53 Cal.Rptr. 545, 418 P.2d 153.)   The court considered and rejected the other form of assumption of risk in which the plaintiff has agreed to relieve the defendant of an obligation of reasonable conduct towards him.  (Ibid.)  Because there was no contention in Grey that the plaintiff expressly assumed the risk, the court necessarily was dealing with “unreasonable” and “reasonable” implied assumption of risk.   Thus, Li 's discussion of two forms of assumption of risk implicitly recognized the continuing validity of reasonable implied assumption of risk, and not just express assumption of risk.  (See Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1478, 255 Cal.Rptr. 755;  but see Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 168–170, 191 Cal.Rptr. 578.)

4.   The court went on to explain that an “ ‘unreasonable’ ” decision to play means the “decision falls below the standard of care which a person of ordinary prudence would exercise to avoid injury to himself or herself under the circumstances.  [Citation.]”  (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at p. 175, 191 Cal.Rptr. 578.)   Nor did the availability of the reasonable alternative of not playing make the decision to play unreasonable.   The court stated that flag football usually is beneficial to the participants and society as a whole, and that such activity should be encouraged.  (Ibid.)

5.   The Court of Appeal in Ordway initially denied the defendant's writ application, and the defendant petitioned the Supreme Court.   The Supreme Court granted review, transferred the case to the Court of Appeal with directions to issue an alternative writ, and referred the Court of Appeal to Turcotte v. Fell, supra, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964.  (Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 101, 243 Cal.Rptr. 536.)   The Supreme Court since has granted review in two cases addressing the viability of implied assumption of risk.  (Harrold v. Rolling J Ranch (1990) 218 Cal.App.3d 36, 266 Cal.Rptr. 734, review granted May 23, 1990 (S014818);  Ford v. Gouin (1990) 217 Cal.App.3d 1606, 266 Cal.Rptr. 870, review granted May 23, 1990 (S014828).)   The Supreme Court's reference to Turcotte in the procedural history of Ordway provides a significant indication that reasonable implied assumption of risk, as a limit on duty, has a role in comparative negligence law.

6.   As Dean Prosser and Professor Keeton stated:  “Thus, the plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him.   There are some things, as for example the risk of injury if one is hit by a baseball driven on a line, which are so far a matter of common knowledge in the community, that in the absence of some satisfactory explanation a denial of such knowledge simply is not to be believed.”  (Prosser & Keeton, The Law of Torts, supra, at § 68, p. 488, fns. omitted.)

7.   Ordway went on to state that even rule violations, if within the athlete's expectation, would not affect application of assumption of risk.  (Ordway v. Superior Court, supra, 198 Cal.App.3d at p. 112, 243 Cal.Rptr. 536.)   No rule violation by respondents is involved in this case;  therefore, we express no opinion on what effect such circumstances might have on the doctrine's use.

8.   The court stated, in rejecting the plaintiff's claims of ignorance and inattentiveness, “We find nothing here to take [plaintiff] outside the usual rule, whether it be said that this ‘common knowledge’ of these obvious and inherent risks are imputed to her or that they are obvious risks which should have been observed by her in the exercise of ordinary care.”  (Brown v. San Francisco Ball Club, supra, 99 Cal.App.2d at p. 489, 222 P.2d 19.)   To the extent Brown appears to endorse a “should have known” as opposed to a “must have known” test for assumption of risk, it clearly is contrary to the rule that the former is contributory negligence, not assumption of risk.  (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at p. 161, 265 P.2d 904.)   Such confusion was not uncommon when either contributory negligence or assumption of risk were sufficient to bar an action, and it made no practical difference what the defense was called.  (Prosser & Keeton, The Law of Torts, supra, at § 68, p. 481.)

9.   The court also found there was no substantial evidence of negligence by the player or the team's manager.  (Mann v. Nutrilite, Inc., supra, 136 Cal.App.2d at pp. 734–735, 289 P.2d 282.)   Such a finding was necessary because, at the time, the usual rule was that a person does not assume the risk of another's negligent conduct.  (Id., at pp. 732, 734, 289 P.2d 282.)   The need for such a finding disappears, though, when assumption of risk is properly analyzed as an implied consent to relieve the defendant of a duty of care, as discussed above.   It is axiomatic that where there is no duty, there can be no breach and hence, no negligence.  (Prosser & Keeton, The Law of Torts, supra, at § 68, pp. 480–481, 496–497.)

10.   Tavernier also endorsed analyzing assumption of risk in terms of a plaintiff's implied consent to relieve the defendant of a duty of care.  (Tavernier v. Maes, supra, 242 Cal.App.2d at pp. 544–553, 51 Cal.Rptr. 575.)   In an exhaustive review of cases applying assumption of risk to sports participants and spectators, Tavernier stated that in activities where there are common hazards to the participants, “the true approach is to determine whether there has been a consent to the invasion of rights which subsequently occurs.”  (Id., at p. 551, 51 Cal.Rptr. 575.)

11.   We do not believe the evidence supports an inference that plaintiff's failure to slide earlier “falls below the standard of care which a person of ordinary prudence would exercise to avoid injury․”  (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at p. 175, 191 Cal.Rptr. 578.)   Plaintiff intended to slide and denied he was late in starting to slide.   When asked why he did not slide, plaintiff stated:  “I don't think it was that I didn't slide.   I don't think I had the opportunity to actually get that far.”

1.   BAJI No. 4.31 (7th ed. 1989 revision) provides in pertinent part:  “A plaintiff who assumes a risk of harm or injury from _ may not recover damages for an injury resulting from the negligence of a defendant.  [¶] The elements of this defense are:  [¶] 1. Plaintiff had actual knowledge of the particular danger;  [¶] 2. Plaintiff knew and understood the degree of the risk involved;  and [¶] 3. Plaintiff thereafter voluntarily assumed such risk.”

2.   The Restatement provides that the plaintiff “must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable.”  (Rest.2d Torts, § 496D, com. b, at pp. 574–575, emphasis added.)

3.   See, e.g., Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503;  Drenzek v. Inmont Corp. (1976) 57 Cal.App.3d 878, 882, 129 Cal.Rptr. 429;  MacLachlan v. Lutz (1967) 249 Cal.App.2d 756, 759, 57 Cal.Rptr. 833;  Cooper v. Lunsford (1965) 234 Cal.App.2d 554, 559, 44 Cal.Rptr. 530.

4.   A possible exception is Tavernier v. Maes (1966) 242 Cal.App.2d 532, 51 Cal.Rptr. 575 where the court stated:  “It is obvious that the phrases ‘ “actual knowledge of the specific danger involved” ’, ‘ “knowledge of the particular danger” ’, or ‘ “knowledge of the magnitude of the risk involved” ’ do not connote that the victim had prescience that the particular accident and injury which in fact occurred was going to occur․   The specificity, particularity, and magnitude in question must refer to the scope and source of possible dangers.  (Id., at p. 543, 51 Cal.Rptr. 575;  maj. opn. at p. 172.)   By referring to the “scope” and “source” of dangers, the Tavernier court seems to recognize the dichotomy, but it does not provide a clear definition of the difference between “actual knowledge of a particular risk” and the “magnitude” of the risk.

5.   Again, the exception seems to be Tavernier v. Maes, supra, 242 Cal.App.2d 532, 51 Cal.Rptr. 575, where the court stated:  “If the accident and the resultant injury fall within general hazards ․ of which the victim had knowledge he may be found to have assumed the risk thereof.”  (Id., at p. 544, 51 Cal.Rptr. 575, emphasis added.)

6.   Of course, by using the term “actual knowledge,” I do not mean to imply that the victim must have the prescience to foresee the precise accident and injury which actually occurs.   It is sufficient if the plaintiff knows the injury and the accident causing mechanism are “ ‘within the range of possibilities;  neither sure nor necessarily apt to happen;  but one that will happen if the conditions are ripe for it.’ ”   (Tavernier v. Maes, supra, 242 Cal.App.2d at p. 544, 51 Cal.Rptr. 575;  Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61, 88 Cal.Rptr. 704.)

7.   If a plaintiff unreasonably assumes a risk, his action is not completely barred;  instead, his recovery is reduced by applying comparative negligence principles.  (Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d at p. 1477, fn. 4, 255 Cal.Rptr. 755.)

CHIN, Associate Justice.

MERRILL, J., concurs.