Shin v. Ahn

KENNARD, J., Concurring and Dissenting.

Fifteen years ago in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight), a plurality of this court abandoned the tort doctrine of implied assumption of risk as a defense to a negligence action in sports cases. Adopted in its place was a rule eliminating between sports participants any duty to avoid injury-causing carelessness, the so-called no-duty-for-sports rule. In the intervening *501years, this rule has found favor with a majority of this court. (See Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990 [4 Cal.Rptr.3d 103, 75 P.3d 30].)

I have disagreed with that rule since its inception in 1992. (See Knight, supra, 3 Cal.4th at p. 336 (dis. opn. of Kennard, J.).) Just last year, in a concurring and dissenting opinion in Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148 [41 Cal.Rptr.3d 299, 131 P.3d 383], I said: “I have repeatedly voiced my disagreement with this court’s adoption of that rule, which is ‘tearing at the fabric of tort law’ (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1075 [68 Cal.Rptr.2d 859, 946 P.2d 817] (conc. opn. of Kennard, J.) ...).. . .” (Avila, supra, at p. 169 (conc. & dis. opn. of Kennard, J.), citation omitted.) And I have pointed out that “because the question of what is ‘inherent’ in a sport is amorphous and fact-intensive, it is impossible for trial courts ‘to discern, at an early stage in the proceedings, which risks are inherent in a given sport.’ (Knight v. Jewett, supra, 3 Cal.4th at p. 337 (dis. opn. of Kennard, J.).)” (Ibid.)

The Knight plurality limited the no-duty-for-sports rule to active sports, such as the game of touch football in that case where the plaintiff lost a finger as the result of rough play by a fellow player. In the words of the Knight plurality: “[A] participant in an active sport breaches a legal duty of care to other participants . . . only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at p. 320, italics added.) The plurality further observed: “[W]e have no occasion to decide whether a comparable limited duty of care appropriately should be applied to other less active sports, such as archery or golf.” (Id. at p. 320, fn. 7.) Today, the majority expressly extends the Knight rule to one of those “less active sports,” golf, noting that “[t]his case represents the next generation of [this court’s] Knight jurisprudence.” (Maj. opn., ante, at p. 486.)

I continue my disagreement with the no-duty-for-sports rule, whether applied to an “active” sport such as touch football or a “less active” one such as golf. I agree, however, with the majority that this case should be remanded for trial. But the majority and I differ on what should be decided at trial. The majority would have the jury decide whether defendant in hitting the golf ball that struck plaintiff was not merely careless but reckless—that is, whether defendant’s conduct, in the words of the Knight plurality, was “totally outside the range of the ordinary activity” involved in the sport (Knight, supra, 3 Cal.4th at p. 320). Under that approach, with which I disagree, a defendant in *502a sports injury case is not liable for negligent conduct falling within the ordinary range of the particular sport but is liable only for actions falling outside of that range. In contrast, I would have this case proceed to trial so the jury, applying traditional principles of tort liability, can decide whether defendant acted negligently and, if so, whether, under the traditional tort defense of implied assumption of the risk, plaintiff “truly appreciated and voluntarily consented to the risk” posed by defendant’s negligent conduct. (Knight, supra, 3 Cal.3d at p. 332 (dis. opn. of Kennard, J.).)