FORD v. GOUIN (1990)

This action raises the issue of whether reasonable implied assumption of the risk remains a viable defense to an action for negligence after the adoption of comparative fault.   We join the majority of those California appellate courts heretofore considering this question and hold that it does.

I. FACTUAL AND PROCEDURAL BACKGROUND

On June 12, 1983, appellant Larry C. Ford was injured when, while water-skiing on a narrow channel in the Sacramento River delta, he collided with a tree limb overhanging the waterway.   As a result, appellant suffered severe head injuries.   At the time of the accident, appellant was skiing backward and barefoot.

The boat towing appellant was driven by respondent Jack Gouin.   In April 1984, appellant filed a complaint against respondent and others for the injuries he sustained as a result of the accident.

In April 1988, respondent filed a motion for summary judgment.   He claimed that the doctrine of reasonable implied assumption of the risk (hereafter sometimes called RIAR) constituted a complete defense to appellant's action.   After briefing by the parties, the trial court agreed and entered judgment in favor of respondent.   Appellant then timely filed the present appeal.

II. DISCUSSION

Appellant first claims that the defense of RIAR no longer exists and has been subsumed by the adoption of comparative negligence.   Our analysis compels us to disagree.

 Most commentators recognize three types of assumption of the risk:  (1) express, (2) unreasonable implied, and (3) reasonable implied.  (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878, 142 Cal.Rptr. 503.)   Express assumption of the risk arises when a plaintiff, in advance, gives consent to relieve a defendant of a legal duty and to take his chances from a known risk.  (See, for example, Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1, 8–10, 236 Cal.Rptr. 181.)   Unreasonable implied assumption of the risk exists when a plaintiff carelessly or negligently chooses to encounter a known risk.   (Gonzalez v. Garcia, supra, 75 Cal.App.3d at pp. 880–881, 142 Cal.Rptr. 503.)   RIAR arises when a plaintiff's reasonable conduct in encountering a known danger raises the inference that he has agreed to relieve the defendant of his duty of care.  (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102, 243 Cal.Rptr. 536.)

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. 858, 532 P.2d 1226, the California Supreme Court abolished the “ ‘all-or-nothing’ ” rule of contributory negligence and replaced it with a system of comparative negligence.   In so doing, the court discussed the effect of its ruling on the defense of assumption of the risk.  “[W]e have recognized in this state that [assumption of the risk] overlaps ․ 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 [emphasis in original] 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.]  We think it clear that the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of assumption of risk involved is no more than a variant of contributory negligence.  [Citation.]”  (Id. at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226, emphasis added.)

 Li had no direct effect on express assumption of the risk. It remains a complete defense to an action based upon negligence. (Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477, fn. 3, 255 Cal.Rptr. 755.)   Unreasonable implied assumption of the risk, on the other hand, clearly was merged into comparative negligence as a result of the court's decision in Li.

The Supreme Court, since Li, has not ruled on the effect of the comparative fault system there adopted on RIAR.   Several appellate courts have examined the issue with contradictory results.

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 Appellate District.   That court concluded RIAR had been abolished by Li.  (Id. at pp. 169–171, 191 Cal.Rptr. 578.)   The court noted that under Li a plaintiff whose implied assumption of the risk was unreasonable would only have his recovery reduced to the extent his own lack of care contributed to the injury.   Conversely, if RIAR continued to exist after Li, a plaintiff whose assumption of the risk was reasonable would be barred from recovery.   Thus, a principal rationale of the Segoviano court's holding was that the elimination of RIAR in the comparative fault system Li established was necessary to avoid punishing reasonable conduct.  (Id. at p. 170, 191 Cal.Rptr. 578.)

The Fourth District Court of Appeal, in Ordway v. Superior Court, supra, (discussed further, post ) examined the Segoviano decision as principally grounded on this reasonable vis-a-vis unreasonable conduct of plaintiff analysis.

Segoviano had interpreted the “ ‘held to agree’ ” language of Li, emphasized above, to mean “expressly” agrees;  i.e., that Li 's citing of Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 104 Cal.Rptr. 566 supports the conclusion the Li court only retained assumption of the risk as a defense in the “ ‘pure’ ” comparative negligence system it adopted where the risk is expressly assumed by plaintiff.  Fonseca stated:  “[I]f the [plaintiff's] conduct be deemed unreasonable, it constitutes both assumption of risk and contributory negligence and, as the latter, may be asserted.”  (28 Cal.App.3d at p. 369, 104 Cal.Rptr. 566, emphasis added.)   Segoviano construed this emphasized language of Fonseca to imply that reasonable conduct of a plaintiff may not be asserted as an assumption of the risk defense.   Following this analysis, Segoviano held that the defense of implied assumption of the risk is abolished in our comparative fault system, post Li;  and that the defendant is only relieved of a duty of care, barring recovery, when plaintiff “expressly agrees to assume the risk․”  (Segoviano v. Housing Authority, supra, 143 Cal.App.3d at pp. 169–170, 191 Cal.Rptr. 578.)

The Segoviano rationale seems weakened by its further reliance on the law of Florida, in view of subsequent developments in that state.  Blackburn v. Dorta (Fla.1977) 348 So.2d 287, in Segoviano 's words, “completely abolished implied assumption of the risk as a defense under [Florida's] comparative negligence law.”  (143 Cal.App.3d at p. 170, 191 Cal.Rptr. 578.)

Florida, like California in Li, adopted a comparative fault system by decision of its Supreme Court.  (Hoffman v. Jones (Fla.1973) 280 So.2d 431.)

Blackburn, supra, overbroadly analyzed Li as holding express assumption of the risk is a viable defense, and “implied assumption of risk is equivalent to and should be treated like contributory negligence.”  (348 So.2d at p. 289, fn. 3.)   This language, of course, ignored Li 's refusal to find that risk assumption overlapped negligence where plaintiff's conduct was interpreted to relieve defendant of his duty of care.

Blackburn said:  “It should be pointed out that we are not here concerned with express assumption of risk which is a contractual concept outside the purview of this inquiry and upon which we express no opinion herein.   [Citation.]   Included within the definition of express assumption of risk are ․ situations in which actual consent exists such as where one voluntarily participates in a contact sport.”  (348 So.2d at p. 290, emphasis added.)

This last emphasized language of Blackburn was revisited by the Florida Supreme Court in Kuehner v. Green (Fla.1983) 436 So.2d 78.  Kuehner involved an assumption of the risk defense where plaintiff sued to recover damages for injuries sustained in a karate sparring match.  “Express assumption of risk, as it applies in the context of contact sports, rests upon the plaintiff's voluntary consent to take certain chances.  [Citation.]  This principle may be better expressed in terms of waiver.   When a participant volunteers to take certain chances he waives his right to be free from those bodily contacts inherent in the chances taken․  [¶] ․ If it is found that the plaintiff recognized the risk and proceeded to participate in the face of such danger the defendant can properly raise the defense of express assumption of risk.”  (Id. at p. 80, emphasis in original.)

Kuehner concluded that the jury should determine if plaintiff “ ‘actually consented’ ” to confront the dangers of karate match competition by first determining if plaintiff “subjectively appreciated the risk giving rise to the injury.”  (436 So.2d at p. 80, emphasis in original.)

Kuehner in effect seems to have merely recategorized the defense of RIAR in sports contact cases as “express” assumption of the risk, if plaintiff's recognition of the risk he assumed was implied from his conduct in participating in karate competition.   What Florida characterizes as an “express” assumption of the risk defense, by this means, was extended to many other activities where a plaintiff's risk assumption was simply implied from his conduct.  (Black v. District Bd. of Trustees (Fla.App.1986) 491 So.2d 303 [police trainee assumes risk of being accidentally struck by another officer in training exercise];  Van Tuyn v. Zurich American Ins. Co. (Fla.App.1984) 447 So.2d 318 [riding a mechanical bull];  Carvajal v. Alvarez (Fla.App.1984) 462 So.2d 1156 [horseback riding with another rider on a single saddle];  Robbins v. Dept. of Natural Resources (Fla.App.1985) 468 So.2d 1041 [knowingly diving into shallow water], specifically overruled by Mazzeo v. City of Sebastian (Fla.1989) 550 So.2d 1113, discussed post;  Ashcroft v. Calder Race Course, Inc. (Fla.App.1985) 464 So.2d 1250 [professional jockey assumed risk of track accident resulting from placement of exit gap], reversed (Fla.1986) 492 So.2d 1309 [negligent placement of exit gap not an inherent risk of horse racing, hence error to instruct on assumption of risk].)

Thus, the Florida courts did not, as Segoviano stated, actually eliminate the defense of assumption of the risk implied from plaintiff's conduct as a complete defense to his claim.¹  However, the Florida Supreme Court has, since the above cited cases, decided that, “To expand this exception [waiver of risk by participation in a contact sport] to include aberrant conduct in noncontact sports collides with the merger of assumption of risk into comparative negligence, which was accomplished in Blackburn.”  (Mazzeo v. City of Sebastian, supra, 550 So.2d at p. 1116.)   In Florida's “ ‘pure’ ” comparative fault system, implied assumption of risk, at least as to contact sports, is preserved under an alias.   It is included in the Florida definition of and deemed to be “express” assumption of the risk.   Indeed, the dissenting justice in Kuehner commented on the “absurd legal semantics which classify voluntary participation in a contact sport as an ‘express' assumption of the risk.”  (436 So.2d at pp. 81–82.)

Ordway, supra, reached an opposite conclusion, disapproving Segoviano as having “turned the law on its head.”  (198 Cal.App.3d at p. 104, 243 Cal.Rptr. 536.)  Ordway involved a professional jockey's claim for damages for injuries he received when thrown from his horse in a race when another jockey violated a rule prohibiting certain interference.

The court found the Segoviano distinction between the “ ‘reasonable’ ” and “ ‘unreasonable’ ” plaintiff only superficially anomalous, reasoning that its analysis of permitting an “ ‘unreasonable’ ” plaintiff to recover while barring an action by a “ ‘reasonable’ ” plaintiff was one that had nothing to do with rewarding or punishing a litigant (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 104–107, 243 Cal.Rptr. 536), and that the true test of the defense of RIAR “is found in the expectation of the defendant.   He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them.   The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against those may result in liability.”   (Id. at p. 105, 243 Cal.Rptr. 536, emphasis added.)  Ordway concluded that RIAR remained a viable defense after Li.

The Ordway court had initially refused extraordinary relief to defendant, whose summary judgment motion was denied in the trial court.   The Supreme Court granted review and, citing Turcotte v. Fell (N.Y.App.1986), 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964, transferred the case to the appellate court with directions to issue an alternative writ.   The Ordway court then issued a peremptory writ compelling the grant of defendant's motion for summary judgment.

Before the decision in Turcotte, the New York Legislature had enacted a comparative negligence statute.   That statute provided, inter alia:  “In any action to recover damages for personal injury, ․ the culpable conduct attributable to the claimant ․, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant ․ bears to the culpable conduct which caused the damages.”  (N.Y.Civ.Practice Law & Rules, § 1411, emphasis added.)

Turcotte, like the plaintiff jockey in Ordway, was injured in a fall during a horse race and, with his wife, sought damages therefor.   Stating that under the above quoted statute “assumption of risk is no longer an absolute defense” (Turcotte v. Fell, supra, 510 N.Y.S.2d at p. 52, 502 N.E.2d at p. 967), the court shifted its analysis of defendant's summary judgment motion to the evaluation of defendants' liability by considering how plaintiff's “assumed risks qualified defendants' duty to him.”  (Ibid.)  Such action was deemed necessary in view of the statutory abolition of assumption of risk as an “absolute defense.”  (Ibid.)

The court determined that “[i]f the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty․” (id., 510 N.Y.S.2d at p. 53, 502 N.E.2d at p. 968);  and that in such cases, plaintiff's actual consent is implied from his election to participate in the activity.  “When thus analyzed and applied, assumption of risk is not an absolute defense but a measure of the defendant's duty of care and thus survives the enactment of the comparative fault statute․”  (Ibid., emphasis added.)

Both Florida and New York seem to have effectively preserved RIAR as a defense.   Florida has done so in a limited fashion, after purportedly judicially abolishing the defense, by holding that “express” assumption of the risk continues to be a complete bar in contact sports cases, and that such risk assumption implied from conduct is “express” assumption of the risk.

New York has maintained the defense as an absolute bar, in the face of a statute literally abolishing assumption of the risk as a defense to a plaintiff's claim, in another way.   It analyzes a plaintiff's conduct to determine if defendant was thereby relieved of a duty of ordinary care to plaintiff.   If so, assumption of the risk remains a complete defense because defendant owed no breachable duty to plaintiff.   The Turcotte analysis is not unlike that of Li, supra, where one form of risk assumption is defined as a situation “ ‘where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him.’ ”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 824, 119 Cal.Rptr. 858, 532 P.2d 1226.)   It is obvious that defendant's “duty to a plaintiff,” as analyzed in Turcotte, 510 N.Y.S.2d at p. 52, 502 N.E.2d at p. 967, and his “obligation of reasonable conduct” to plaintiff, as used in Li, 13 Cal.3d at p. 824, 119 Cal.Rptr. 858, 532 P.2d 1226, express the same concept.

Ordway, considering Turcotte as directed by the Supreme Court, adopted the Turcotte analysis:  “The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event.   Where no duty of care is owed with respect to a particular mishap, there can be no breach;  consequently, as a matter of law, a personal injury plaintiff who has voluntarily—and reasonably—assumed the risk cannot prevail․  [T]he 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, emphasis added.

Succeeding California authorities tip the scales in favor of the Ordway analysis.  (King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 253 Cal.Rptr. 140 [after having previously climbed up and down a ladderhaving obvious defects, plaintiff assumed the risk of injury when he ascended the ladder again];  Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 255 Cal.Rptr. 755 [a professional stuntperson in certain circumstances, i.e., where she is not misled as to the extent of the risk to be assumed, could be found to have assumed the risk of injury];  Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 [a self-employed gardener who fell from a rickety ladder had assumed the risk of injury].)

The defenses of assumption of the risk, contributory negligence, and the fellow servant rule have been described by modern commentators as the “ ‘three wicked sisters of the common law’ ” with roots in the nineteenth century, when plaintiffs were harshly precluded from recovery.   Only assumption of the risk remains a viable defense, workers' compensation statutes having practically eliminated the fellow servant rule, and contributory negligence having been succeeded by comparative negligence systems in most American jurisdictions.   (Rosenlund & Killion, Once a Wicked Sister:  The Continuing Role of Assumption of Risk Under Comparative Fault in California (1986) 20 U.S.F.L.Rev. 225, 226, fn. omitted, 264, fn. 233.)

The “ ‘pure’ ” comparative fault system adopted by the Supreme Court in Li was said to be one “under which the assessment of liability in proportion to fault proceeds in spite of the fact that the plaintiff is equally at fault as or more at fault than the defendant․”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at p. 808, 119 Cal.Rptr. 858, 532 P.2d 1226.)   This system was said to be “preferable ․ from the point of view of logic, practical experience, and fundamental justice․”  (Ibid.)

In Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162, the Supreme Court held the strict products liability of an automobile manufacturer could, in the comparative fault system, be compared with the negligence of the plaintiff product user.  “[W]e are, in the wake of Li, disinclined to resolve the important issue before us by the simple expedient of matching linguistic labels which have evolved either for convenience or by custom.   Rather, we consider it more useful to examine the foundational reasons underlying the creation of strict products liability in California to ascertain whether the purposes of the doctrine would be defeated or diluted by adoption of comparative principles․”  (Id. at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162, emphasis added.)   The court, in allowing comparison of strict products liability with plaintiff's negligence, concluded “plaintiff's recovery will be reduced only to the extent that his own lack of reasonable care contributed to his injury.”  (Id. at p. 737, 144 Cal.Rptr. 380, 575 P.2d 1162, emphasis in original.)   Since Daly, many cases have applied a comparative fault analysis where diverse theories of liability of plaintiff and defendant (or codefendants) are presented.  (Safeway Stores, Inc. v. Nest–Kart (1978) 21 Cal.3d 322, 146 Cal.Rptr. 550, 579 P.2d 441 [strict products liability of one tortfeasor compared with negligence of a secondtortfeasor];  Southern Pac. Transportation Co. v. State of California (1981) 115 Cal.App.3d 116, 171 Cal.Rptr. 187 [willful misconduct does not bar application of the comparative fault doctrine];  California Casualty Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 218 Cal.Rptr. 817 [the bad faith of insurer and plaintiff may be compared];  Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 221 Cal.Rptr. 675 [comparative fault principles apply to statutory violations];  Tint v. Sanborn (1989) 211 Cal.App.3d 1225, 259 Cal.Rptr. 902 [the defendant's action in maintaining a nuisance may be properly compared to plaintiff's negligence].)

Despite this extensive trend toward approval of the comparison of fault of parties who are charged under diverse (or “ ‘apples and oranges' ”) liability theories (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 734, 144 Cal.Rptr. 380, 575 P.2d 1162), it has not been extended in California to a plaintiff's conduct comprising RIAR, if Segoviano is ignored.   As we have seen, in New York and Florida, such defense has survived statutory provisions or judicial decisions purporting to abolish it.

Other states have dealt differently from California with implied risk assumption in comparative negligence systems.   For example, Oregon's statute provided, inter alia:  “The doctrine of implied assumption of the risk is abolished.”  (Ore.Rev.Stats. 18.475, subd. (2).)  The Oregon Supreme Court in Blair v. Mt. Hood Meadows Develop. Corp. (1981), 291 Or. 293, 630 P.2d 827, 831 (fn. omitted, modified in other particulars at 291 Or. 703, 634 P.2d 241) held that this revised statute, “flatly abolishing” the doctrine of implied assumption of the risk, acted “to abolish all use of the concept of plaintiff's assumption of risk in negligence cases (other than in its ‘express' sense) whether as a defense to defendant's prior ‘tortious' conduct or as a shorthand phrase for defendant's lack of duty under the circumstances․”

Similarly, Idaho, reasoning that the doctrine of assumption of the risk had outgrown its ancient purpose of insulating employers from the cost of human injury in industrialized business and characterizing it as “unfair,” “ ‘all-or-nothing,’ ” and a doctrine of “duplicity and confusion” (Salinas v. Vierstra (1985), 107 Idaho 984, 695 P.2d 369, 373, 372), interpreted its comparative negligence statute (Idaho Code, § 6–801), which made no express mention of assumption of the risk, as compelling the rejection of assumption of the risk as a defense.   The court ordered such issues to be henceforth discussed and applied under comparative negligence laws, except for situations where a plaintiff, orally or in writing, expressly assumes the risk.   In such cases, to be henceforth treated not as “assumption of risk” but in terms of “ ‘consent’ or something of a similar nature” (Salinas v. Vierstra, supra, 695 P.2d at p. 375), plaintiff's risk assumption remains a complete bar.   However, the same court subsequently analyzed Salinas 's implied rejection of “ ‘primary’ ” assumption of the risk as dicta in considering the fireman's rule.  (Winn v. Frasher (1989), 116 Idaho 500, 777 P.2d 722, 725.)

 Some arguments for abolition of the defense of RIAR seem, at least superficially, compelling.   The doctrine is of ancient and anachronistic origin, judicially designed to insulate employers of the Industrial Revolution and protect industry by providing it substantial legal immunity for the claims of workers.   That is the antithesis of the policy of this state today.²  The doctrine, expanding over time, continues to bar any recovery by a plaintiff and is criticized for its alleged unfairness and harshness.  (Prosser & Keeton on Torts (5th ed. 1984) Negligence:  Defenses, § 68, pp. 493–495.)

A plaintiff's actual knowledge of the risk he assumes, a necessary element of the defense of implied assumption of the risk, must usually be measured by and assumed from the same conduct of that plaintiff which is also analyzed by the jury in determining if plaintiff negligently failed to exercise ordinary care.   Thus, if plaintiff's conduct is construed by a jury to imply advance consent to run the risk of an unintended or possible injury inflicted by defendant, “[t]he result is that the defendant is relieved of legal duty to the plaintiff;  and being under no duty, he cannot be charged with negligence.”  (Prosser & Keeton on Torts, op. cit. supra, § 68, pp. 480–481.)   In such event, no comparison of plaintiff's conduct is made with that of defendant because he lacks a duty to plaintiff, even through his conduct may contribute to plaintiff's injury.   If the same conduct of plaintiff is construed by a jury to show only that plaintiff failed to exercise ordinary care, that conduct is compared with defendant's conduct in assessing fault.

Arguably, in a comparative fault system, the respective conduct of plaintiff and of defendant could be compared, ignoring the “linguistic labels” (Daly v. General Motors Corp., supra, 20 Cal.3d at p. 736, 144 Cal.Rptr. 380, 575 P.2d 1162) attached to the results of plaintiff's conduct as either abrogating a defendant's duty to plaintiff or establishing plaintiff's lack of ordinary care.

We think, however, the issue of the survival of RIAR should be approached on policy grounds;  i.e., by an examination of the foundational reasons underlying the adherence, by a majority of California appellate courts and appellate courts of other states, to the doctrine of RIAR as a defensive bar to actions of plaintiffs.

Professor Fleming contended:  “[T]he future relation between assumption of risk and comparative negligence [in California]․ require[s] the safety valve of ‘no duty’ for continued recognition of certain isolated instances of reasonable assumption of risk.”  (Fleming, The Supreme Court of California 1974–1975 Forward:  Comparative Negligence at Last—By Judicial Choice (1976) 64 Cal.L.Rev. 239, 266.)

Li recognized that “ ‘where plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him[, s]uch a situation would not involve contributory negligence, but rather a reduction of defendant's duty of care.’ ”  (Li v. Yellow Cab Co., supra, 13 Cal.3d at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226.)

The principle, that “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby,” has long been the true basis of the so-called “fireman's rule.”  (Walters v. Sloan (1977) 20 Cal.3d 199, 204, 142 Cal.Rptr. 152, 571 P.2d 609;  Baker v. Superior Court (1982) 129 Cal.App.3d 710, 714, 181 Cal.Rptr. 311;  cf. Hubbard v. Boelt (1980) 28 Cal.3d 480, 484, 169 Cal.Rptr. 706, 620 P.2d 156;  see also Nelson v. Hall (1985) 165 Cal.App.3d 709, 714–715, 211 Cal.Rptr. 668.)

Justice Kaufman, in Baker v. Superior Court, supra, a case extending the fireman's rule to paid call or volunteer fire fighters, said:  “Conduct of an injured party or circumstances that for policy reasons are deemed to negate the existence of the usual duty to exercise reasonable care remain [after Li ] a viable and complete defense to an action for damages for injuries resulting from negligence.  [Citations.]”  (129 Cal.App.3d at p. 720, 181 Cal.Rptr. 311, emphasis added.)

It, thus, becomes clear that the doctrine of RIAR, though criticized by some, is in the view of a majority of appellate courts of this state a continuing viable defense.   It remains in force in states that had purportedly abolished it, although in some instances by different linguistic labels.

 We believe the defense of RIAR survives in California and in other states for the policy reason that it is deemed fair and useful to maintain.   In our contemporary and litigious society, where fault of the parties is compared to resolve liability for injury, one who is relieved of fault because he owes no duty should continue to escape liability entirely.   His absence offault in such circumstances eliminates any culpable conduct of his for comparison;  and that fact, if proven, allows summary disposition of injury claims lacking merit.   Thus, courts in appropriate circumstances can apply this doctrine and expeditiously resolve cases through motions for summary judgment, as did the court in this case.   Juries, in such circumstances, can under theguidance of proper instruction resolve appropriate cases by a verdict that need not reach the issue of comparative fault.

The clear California trend has been toward validating RIAR as a defense.

Use notes and comments following BAJI No. 4.30, which formerly failed to distinguish between reasonable and unreasonable implied assumption of the risk and suggested that both forms had been abolished, have been withdrawn;  and a new BAJI instruction expressly recognizing RIAR as a viable defense has been created.  (See BAJI Nos. 4.30 & 4.31 (1989 New) (7th ed. 1986 & 1989 pocket pt.) pp. 14–17.)

Finally, while the Supreme Court's directions to the Ordway court to consider Turcotte, supra, do not constitute a holding which we are bound to follow (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), we view such action as providing tacit approval of the doctrine of RIAR.   We, thus, hold that RIAR remains a viable defense even after the adoption of comparative negligence.

Having reached this conclusion, we must next determine whether judgment was properly entered for respondent in the present case.

“If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants ․ 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.)

 Here, appellant was injured while water-skiing backward and barefoot in a narrow channel.   One of the risks inherent in this activity, respondent claims, is that the driver of the boat may veer from a straight course and tow the skier in such a way that he would be endangered by branches overhanging the waterway.   Thus, respondent argues, appellant cannot maintain the present action because he reasonably and impliedly assumed the risks implicit in the activity in which he was participating.   We agree.

Evidence submitted in support of the motion for summary judgment established that the channel in which appellant was skiing was 170 feet wide.   A grass island running the length of the channel reduced its width to 120 feet.   Opposite the island, trees extended over the waterway between 10 and 35 feet.   Thus, assuming respondent drove the boat a navigable distance away from the island, the navigable width of the channel was between 65 and 90 feet.

Appellant stated that he was skiing at an angle of between 35 and 40 degrees from the mid-line of the boat, and that the towrope he was using was 95 feet long.   Expert testimony established that the angle at which appellant was skiing would reduce the navigable width of the channel an additional 55 to 67 feet.   Thus, at best, the navigable space in which respondent could drive without causing injury to appellant was only 35 feet.

However, the evidence also showed that appellant had skied in the area in which the accident occurred over 50 times.   He was aware of the island running the length of the channel and that branches hung over the waterway.   He chose the place in which to ski and told respondent at what speed to drive.   Given the narrowness of the channel and the small margin of error with which respondent, as driver of the boat, had to contend, appellant impliedly assumed the risk respondent might veer from a straight course and tow him in such a way he would collide with a branch overhanging the waterway, which he could not see ahead of him for purposes of evasive action while skiing backward.

Furthermore, we believe appellant's assumption of this risk was knowing and reasonable.   Appellant had 15 years experience as a water-skier.   Prior to the accident, he had skied barefoot and backward over 50 times.   Appellant's expert stated that the area in which appellant was injured was “reasonably safe” for backward barefoot water-skiing.   Prior to entering the water, appellant put on a pair of insulated shorts, a wet suit, gloves, and a neck brace.

Despite this expert evidence appellant offered, clearly indicating his conduct under the circumstances was “reasonabl[e],” the dissent insists the implied risk he assumed was “unreasonable.”  (Emphasis in original.)   Appellant concedes on appeal that, “In his motion for summary judgment [respondent] relied solely on the so[-]called affirmative defense of RIAR as his legal theory.”  (Emphasis added.)

Appellant's assumption of the risks inherent in this activity clearly was based on his extensive experience as a water-skier in the area where he received his injuries, and was reasonable.³

Summary judgment is appropriate when the evidence in support of the moving party establishes that there is no triable issue of fact, and that the moving party is entitled to a judgment as a matter of law.  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)   Where there is no material issue of fact to be tried and the sole question remaining is one of law, the trial court must determine the issue of law.   (Angelus Chevrolet v. State of California (1981) 115 Cal.App.3d 995, 1000, 171 Cal.Rptr. 801.)

Because the determination of the trial court is one of law based upon the papers submitted, the appellate court must make its own independent determination of their construction and effect.  (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 496, 86 Cal.Rptr. 744.)   However, a motion for summary judgment is addressed to the sound discretion of the trial court and, absent a clear showing of abuse, the judgment will not be disturbed on appeal.   (Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253.)

Here, after independently reviewing the papers submitted in support of and in opposition to the motion for summary judgment, we cannot say the trial court abused its discretion in granting the motion.

III. DISPOSITION

The order granting summary judgment and the judgment entered thereon are affirmed.

I concur with my colleague in the lead opinion.   I agree that Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had no effect upon the doctrine of express assumption of the risk, whether oral or written, because this form of assumption of risk sounds in contract rather than tort.   Express assumption of the risk is, of course, a complete bar to recovery in an action for negligence under comparative negligence.

I further agree, as Li made clear, that unreasonable implied assumption of risk is “ ‘in reality a form of contributory negligence’ ” (id., at p. 824, 119 Cal.Rptr. 858, 532 P.2d 1226) and, therefore, folded into the scheme of comparative negligence (id., at pp. 824–825, 119 Cal.Rptr. 858, 532 P.2d 1226).

Left undecided in Li, and the issue before us in the instant case, is whether reasonable implied assumption of the risk by the plaintiff acts as a total defense.   It is here that I have doubts, though ones which I feel arebetter left stated and then put aside, owing to recent contrary implications from our Supreme Court.

Reasonable implied assumption of the risk takes place when plaintiff assumes a reasonable risk and plaintiff's consent is implied from his or her conduct.   This is the approach taken by the lead opinion, my colleague essentially saying that, just as a contract may be expressed or implied by conduct, so also may the complete defense of assumption of the risk.   I find this to be a harsh fiction.   The court in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536, refers to a plaintiff who knowingly and voluntarily assumes a risk and is thereby deemed to have “agreed to reduce the defendant's duty of care.”  (Id., at p. 104, 243 Cal.Rptr. 536, emphasis added.)   That might be fair and in the spirit of comparative-negligence principles if true.   However, applying Ordway does not just “reduce” the defendant's duty of care;  it eliminates it and bars entirely recovery by the plaintiff.

Ordway produces a harsh and unfair result and is, in my view, contrary to the spirit of the doctrine of comparative negligence adopted in Li.   I would prefer an approach in line with that taken in Oregon and Idaho, where appellate courts construing comparative-negligence legislation concluded that reasonable implied assumption of the risk, like its “unreasonable” sibling, is an orphan in a comparative-negligence world.  (Blair v. Mt. Hood Meadows Develop. Corp. (1981), 291 Or. 293, 630 P.2d 827;  Salinas v. Vierstra (1985), 107 Idaho 984, 695 P.2d 369.)

However, I recognize that our state's adoption of comparative negligence was judicial, rather than legislative, having emanated from our state Supreme Court in Li.   For that reason, I agree with the lead opinion that directions from that court to the Ordway court to consider Turcotte v. Fell (N.Y.1986), 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 (holding that reasonable implied assumption of the risk is a complete defense) is a signal with meaning.   It is with this signal in mind that I concur in the lead opinion.

This case does not genuinely involve reasonable implied assumption of risk.   Defendant's motion for summary judgment should therefore have been denied even if, as I do not agree, that doctrine should remain a viable defense to an action for negligence after the adoption of comparative fault.

I.

In support of his motion for summary judgment defendant maintained, as stated in the motion itself, that plaintiff “did not feel he had mastered the the technique of barefoot backward water skiing.   He could not cross the wake.”   Furthermore, according to defendant, “[p]laintiff's decision to ski where he did was his decision alone.   Navigation in this particular channel with the trees present on the side of the bank was a risky proposition on a 95 foot rope.   Since plaintiff had not yet mastered the art of crossing the wake, one wonders why he would bother to try skiing in such an area.”   The evidence presented in behalf of this argument was the affidavit of Dean Tuft, an “accident reconstruction and safety expert,” whose concluding opinion was that “the selection of this particular site by the plaintiff caused the accident in question.” ¹

The theory defendant advanced below—that plaintiff carelessly or negligently chose to encounter a known risk—was not that of reasonable implied assumption of risk but unreasonable implied assumption of risk.

Where a plaintiff unreasonably encounters a known risk “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, Torts (4th ed. 1964) § 68, p. 441;  see also, Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 32 Cal.Rptr. 193, 383 P.2d 777;   Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 369, 104 Cal.Rptr. 566.)   As Justice Peterson's lead opinion correctly points out, such overlap was eliminated in this jurisdiction by Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, which abolished the defense of unreasonable implied assumption of risk.   As stated in Li, “the adoption of a system of comparative negligence should entail the merger of the defense of assumption of risk into the general scheme of assessment of liability in proportion to fault in those particular cases in which the form of the assumption of risk involved is no more than a variant of contributory negligence.”  (Id., at p. 825, 119 Cal.Rptr. 858, 532 P.2d 1226.)   Because it was based upon a theory of assumption of risk that is legally untenable, defendant's motion for summary judgment should have been denied.

II.

Belatedly aware of his legal problem, defendant recharacterizes his legal theory on appeal.   His present theory goes like this:  Plaintiff acted reasonably at all times;  his injury was not caused by his own negligence but by that of defendant.   Plaintiff reasonably assumed the risk of such negligence, however, because driver negligence is an inherent risk of the sport within the ordinary expectations of all waterskiers.

Defendant's present theory is based almost entirely on Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 243 Cal.Rptr. 536.   The plaintiff in Ordway was a professional jockey thrown from her horse and injured when another jockey, without looking, moved his horse in front of others, causing one of them to fall in front of plaintiff's horse.   The court gave short shrift to the plaintiff's assertion that “ ‘I did not consider ․ that I was participating in a dangerous activity.’ ”  (Id., at p. 111, 243 Cal.Rptr. 536.)   As a professional rider, the court declared, she was deemed to appreciate “the risks inherent in a sport where large and swift animals bearing human cargo are locked in close proximity under great stress and excitement.”   (Id., at p. 109, 243 Cal.Rptr. 536.)

Ordway stated the “correct rule” as follows:  “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.   It is of no moment that the participants may be penalized for these actions by the officials.   Routine rule violations, such as clipping in football, low blows in boxing, and fouls in horse races are common occurrences and within the parameters of the athletes' expectations.”  (Id., at pp. 111–112, 243 Cal.Rptr. 536, fn. omitted.)  Ordway, which is at least in part inconsistent with the position taken by the Restatement of Torts,² thus appears to adopt a foreseeability standard, exempting a defendant only from liability for a foreseeable breach of duty.³

Defendant's contention that Ordway compels the conclusion that his negligence was within the ordinary expectations of plaintiff is not persuasive.

First of all, Ordway certainly does not suggest that all athletic or recreational injuries should reasonably be anticipated;  the court explicitly acknowledged that there are “gray areas” presenting factual not legal questions.   For example, the court noted, “[a] borderline situation is presented by knock-out punches in hockey.   They are quite common, but not officially condoned as part of the game.   Reasonable minds might differ as to them.   Tossing one's opponent out of the ring in professional wrestling is also a gray area.   These sorts of cases are jury material.”  (Id., at p. 112, fn. 8, 243 Cal.Rptr. 536.)   If the dangers presented by one's adversaries need not be reasonably anticipated in all competitive confrontations, it is at the very least debatable whether the danger presented to a waterskier by his driver should be anticipated, considering that the driver is not an adversary but a collaborator whose chief purpose is to protect and assist the skier in what amounts to a joint enterprise.

It is true that, although “every person has a right to presume that every other person will perform his duty and obey the law” (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523, 105 Cal.Rptr. 904), a plaintiff who engages in certain types of risks or who has specific knowledge may nonetheless assume the risk of another's negligence.  (See, e.g., Morton v. California Sports Car Club (1958) 163 Cal.App.2d 685, 688, 329 P.2d 967.)   However, where, as in the present case, the risk arguably assumed involves the defendant's future conduct, the plaintiff must have knowledge of and appreciate the particular risk to which he was subjecting himself.  (Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 274–275, 32 Cal.Rptr. 193, 383 P.2d 777;  Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 235, 282 P.2d 69;  Smith v. Dhy–Dynamic Co. (1973) 31 Cal.App.3d 852, 857, 107 Cal.Rptr. 907;  Tavernier v. Maes (1966) 242 Cal.App.2d 532, 542, 51 Cal.Rptr. 575.)

The only California case indicating that a plaintiff must anticipate the negligence of a driver into whose hands he delivers himself is easily distinguishable because, among other things, it involved a driver (of an automobile) with only one arm.  (Doggett v. Lacey (1932) 121 Cal.App. 395, 9 P.2d 257.)   It therefore cannot be established as a matter of law that waterskiers or others who are driven ordinarily anticipate the negligence of their drivers.   Accordingly, the burden is on defendant to come forward with such evidence, or, in the alternative, with evidence that this particular plaintiff anticipated the negligence of this particular defendant.

Given the pretrial posture of this case, the nature of defendant's evidentiary burden is defined by well established rules governing summary judgment.   (Code of Civ.Proc., § 437c.)  “ ‘Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not be affidavit show such facts as may be deemed by the judge hearing the motion to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.’ ”  (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851–852, 94 Cal.Rptr. 785, 484 P.2d 953, quotingStationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785, fn. omitted.)

Unsurprisingly—because, as earlier described, defendant did not in the trial court even claim that driver negligence is an inherent or foreseeable risk of waterskiing—defendant has provided absolutely no evidence to support the theory of assumption of risk he now advances.⁴  The only evidence before the court that even remotely bears on the factual issue central to the theory of assumption of risk defendant is now advancing is the affidavit of plaintiff's expert, Tom Huey.   Mr. Huey, a national waterskiing champion, stated that “[i]t is ․ the standard in the field [ ] that it is the responsibility of the driver of the boat to watch out for the skier being towed, like a guide dog for a blind person.   It is the responsibility of the driver to drive a course not dangerous to the skier.”   This evidence hardly suggests that waterskiers ordinarily anticipate and therefore assume the risk of driver negligence.   Thus, in light of defendant's failure to sustain the high evidentiary burden on a party moving for summary judgment, the motion should have been denied even if the defense of reasonable implied assumption of risk still exists in this jurisdiction.

For the foregoing reasons, I would reverse the judgment granting summary judgment and remand the matter for trial.

III.

Because of the manner in which I would resolve this case, it is for me unnecessary to address the interesting question that preoccupies my colleagues:  whether reasonable implied assumption of risk remains a viable defense in California after the adoption of comparative negligence.   However, because they differ as to the wisdom of the result they jointly reach, my view may be more than a mere obiter dictum.

I do not believe the California Supreme Court has, either in Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 or elsewhere,⁵ resolved the issue.   The tenor of the court's subsequent opinion in Daly v. General Motor Corp. (1978) 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 is, if anything, inconsistent with the idea that a defendant who has breached his duty of care toward the plaintiff may nonetheless raise as a complete defense the fact that the plaintiff reasonably but voluntarily encountered that risk.

Except where there is an express agreement, the doctrine of assumption of risk is simply a confusing way of stating certain no-duty rules or, where there has been a breach of duty toward plaintiff, simply one kind of contributory or comparative negligence.   I believe the doctrine should be abolished.   As stated in one of the most authoritative treatises on the law of torts, “[t]he 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.   The one exception is to be found, perhaps, in those cases where there is an actual agreement.   Moreover, the expression has come to stand for two or three distinct notions that are not at all the same, though they often overlap in the sense that they are applicable to the same situation.”  (4 Harper, James & Gray, The Law of Torts (2d ed. 1986) § 21.8, p. 259, fn. omitted;  accord, Bohlen, Voluntary Assumption of Risk, 20 Harv.L.Rev. 14;  Green, Assumed Risk as a Defense, 22 La.L.Rev. 77 (1961);  Keeton,Assumption of Risk and the Landowner, 22 La.L.Rev. 108 (1961);  but see, Prosser and Keeton, The Law of Torts (5th ed. 1984), § 68.)   The confusion in the present case as to whether the defense is that of reasonable or unreasonable implied assumption of risk is an excellent illustration that, as the courts of other states are increasingly coming to realize, “the term ‘assumption of risk’ is so apt to create mist that it is better banished from the scene.”  (McGrath v. American Cyanamid Co. (1963) 41 N.J. 272, 276, 196 A.2d 238, 240–241, reaffg. Meistrich v. Casino Arena Attractions, Inc. (1959) 31 N.J. 44, 155 A.2d 90;  see also, Salinas v. Vierstra (1985) 107 Idaho 984, 695 P.2d 369;  Rutter v. Northeastern Beaver Cty., etc. (1981) 496 Pa. 590, 437 A.2d 1198;  McWilliams v. Parham (1967) 269 N.C. 162, 152 S.E.2d 117;  Parker v. Redden (Ky.1967) 421 S.W.2d 586;  Felgner v. Anderson (1965) 375 Mich. 23, 133 N.W.2d 136;  Bolduc v. Crain (1962) 104 N.H. 163, 181 A.2d 641.)

FOOTNOTES

1.   The Segoviano analysis is criticized in Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900 as “suspect․  Segoviano 's holding that implied consent, i.e., conduct by a plaintiff, cannot reduce or eliminate defendant's duty appears contrary to Li 's express acknowledgement that reasonable conduct involves precisely that.”

2.   “The Legislature is ․ vested with plenary power ․ to create, and enforce a complete system of workers' compensation, ․ [and] to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability․   A complete system of workers' compensation includes adequate provisions for the comfort, health and safety and general welfare of any and all workers ․, irrespective of the fault of any party․”  (Cal. Const., art. XIV, § 4.)

3.   The dissent further suggests a distinction in analysis of RIAR in sporting endeavors, measured by the dangers presented by adversaries as opposed to those presented by collaborators.   Danger from the former, it is suggested, may be reasonably anticipated;  anticipation of danger from the latter is said to be “debatable.”   Carried to its logical extension, on this analysis, a participant in a competitive sport would assume the risk of injury from physical contact with an opponent but not from a member of his own team.   This ignores a fact every participant in or follower of competitive sports knows:  Physical contact causing injuries is routinely caused by both the acts of adversaries and of collaborators by reason of the very nature of the activity in which all participate.

1.   This opinion was directly contradicted by that of plaintiff's expert, Tom Huey, a national waterskiing champion who had skied on and was familiar with the area of the channel in which the accident occurred.   Mr. Huey declared that the site selected by plaintiff “was a reasonably safe area in which to ski barefoot and backwards and was an area which provided an adequate and safe area of lateral movement, especially since the area of lateral movement when skiing barefoot and backwards is greatly reduced from the usual area when waterskiing forward with skis.”   This testimony, which is at least as authoritative as the contrary statement of defendant's expert, a mechanical engineer, presents a material issue of fact.

2.   The Restatement does not agree that an athlete consents to violations of the rules of the game.  “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.   Participating in such a game does not manifest consent to contacts which are prohibited by rules or usages of the game if such rules or usages are designed to protect the participants and not merely to secure the better playing of the game as a test of skill.   This is true although the player knows that those with or against whom he is playing are habitual violators of such rules.”  (1 Restatement of Torts Second, § 50, Comment b, p. 86, italics added.)

3.   The foreseeability standard can be distinguished from the so-called “part of the game” standard.   The latter “differs from the foreseeability test by avoiding the definitional problems inherent in the word forseeability that have long haunted the law of torts.   The ‘part of the game’ standard would allow a plaintiff to recover even if his injury resulted from a foreseeable risk, as long as that risk was not one normally associated with the game.”  (See, Comment, Assumption of Risk and Vicarious Liability in Personal Injury Actions Brought By Professional Athletes, 1980 Duke L.J. 742, 758, fns. omitted, italics in original.)

4.   Other than the affidavit of his “accident reconstruction and safety expert,” defendant offered in evidence the police report, and the depositions of the parties and witnesses.   None of this evidence even purports to show that waterskiers ordinarily anticipate the negligence of their drivers or that this plaintiff anticipated or should have anticipated the negligence of this particular driver.   The only evidence defendant presented that is arguably germane to his present theory of assumption of risk is the deposition of plaintiff himself, which does not help defendant.   When asked his understanding of defendant's experience as a waterskier and as a driver, plaintiff responded:  “I thought he was extremely experienced.”

5.   Unlike my colleagues, I do not agree that the Supreme Court's order granting the petition for review in Ordway v. Superior Court and transferring the case to the Court of Appeal is “a signal with meaning” because the order cited Turcotte v. Fell (1986) 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964.   For one thing, the Supreme Court did not call public attention to its order or require its publication by the Court of Appeals;  it is therefore doubtful that the Supreme Court itself ever intended or expected that its administrative order would exert precedential effect in subsequent cases.   Moreover, the order did not require the Court of Appeal to reach any particular result, the appellate court was directed only to consider the Turcotte opinion in the process of evaluating Ordway's petition.   The mere citation of a case in an order that does not draw any conclusions about the merits of the cited case or the case before the court and is completely lacking in reasoning or discussion does not rise even to the level of a dictum and is still less entitled to deference under the doctrine of stare decisis.  (See People v. Gregg (1970) 5 Cal.App.3d 502, 506–507, 85 Cal.Rptr. 273.)

PETERSON, Associate Justice.