Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

Valentino v. Philadelphia Triathlon, LLC, 209 A.3d 941 (Pa. 2019)

Michele Valentino, as Administratrix of the Estate of Derek Valentino, Deceased, and Michele Valentino, in Her Own Right, Appellant

v.

Philadelphia Triathlon, LLC, Appellee

No. 17 EAP 2017

Supreme Court of Pennsylvania

June 18, 2019

Argued: May 15, 2018

Appeal from the Judgment of Superior Court entered on November 15, 2016 at No. 3049 EDA 2013 affirming the Order entered on September 30, 2013 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1417 April Term, 2012. Jacqueline F. Allen, Judge

Craig A. Falcone, Esq., Sacchetta & Falcone, for Appellant Michele Valentino, as Admin. of the Estate of Derek Valentino, etc.

Barbara Axelrod, Esq., The Beasley Firm, L.L.C., for Appellant Amicus Curiae Pennsylvania Association for Justice.

Heather M. Eichenbaum, Esq., Spector Gadon & Rosen, P.C., for Appellee Philadelphia Triathlon, LLC.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

ORDER

PER CURIAM

AND NOW, this 18th day of June, 2019, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Justice Wecht did not participate in the consideration or decision of this matter.

OPINION IN SUPPORT OF AFFIRMANCE

BAER, JUSTICE.

This Court granted allocatur to determine whether an express assumption of the risk agreement executed by triathlon participant Derek Valentino (“Decedent”) serves as a defense to a wrongful death claim commenced against the Philadelphia Triathlon, LLC (“Triathlon”) by Decedent’s heir (“Appellant”), who was not a signatory to the agreement.[1] The Superior Court held that Decedent’s express assumption of the risks inherent in participation in the sporting event eliminated Triathlon’s duty of care, thereby rendering Triathlon’s conduct non-tortious. Absent tortious activity, the Superior Court concluded that the wrongful death claim brought by Decedent’s heir could not succeed as a matter of law because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Accordingly, the Superior Court affirmed the trial court’s order granting summary judgment in favor of Triathlon. For the reasons set forth herein, we would affirm the judgment of the Superior Court and adopt its astute legal analysis.

Preliminarily and as explained in more detail infra, we respectfully note that the Opinions in Support of Reversal (both hereinafter collectively referred to as “OISR”) ignore the issue for which we granted allocatur and, instead, attempt to reverse the judgment of the Superior Court on grounds not encompassed by this appeal. Specifically, the OISR would sua sponte hold that express assumption of the risk agreements are void and unenforceable in violation of public policy in cases involving claims brought pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. The OISR reaches this conclusion notwithstanding that no party to this appeal challenges the validity of the agreement on public policy grounds or otherwise. We decline to engage in this judicial overreaching and proceed to address the merits of the issue before us.

We begin with a brief recitation of the facts. In 2010, Triathlon organized a multi-sport-event, comprised of swimming in the Schuylkill River, cycling for more than fifteen miles, and running for more than three miles. To compete in the event, each participant was required to register, pay a fee, and execute electronically a liability waiver agreement that included an assumption of the risk provision (“Agreement”). On January 24, 2010, Decedent complied with these requisites by electronically registering as a participant in the triathlon and executing the Agreement.

The executed Agreement stated that Decedent understood “the physical and mental rigors associated with triathlon,” and “that running, bicycling, [and] swimming

… are inherently dangerous and represent an extreme test of a person’s physical and mental limits.” Appellee’s Motion for Summary Judgment Ex. G, dated Aug. 5, 2013. The Agreement further acknowledged Decedent’s understanding that “participation involves risks and dangers which include, without limitation, the potential for serious bodily injury, permanent disability, paralysis and death … and other undefined harm or damage which may not be readily foreseeable[.]” Id. The Agreement provided that Decedent was aware “that these Risks may be caused in whole or in part by [his] own actions or inactions, the actions or inactions of others participating in the Event, or the acts, inaction or negligence of [the Triathlon].” Id.

Germane to this appeal, the Agreement stated that Decedent “expressly assume[d] all such Risks and responsibility for any damages, liabilities, losses or expenses” resulting from his participation in the event. Id. (emphasis added). The Agreement also included a provision stating that Decedent further agreed that if he or anyone on his behalf “makes a claim of Liability against any of the Released Parties, [Decedent] will indemnify, defend and hold harmless each of the Released Parties from any such Liability which any [sic] may be incurred as the result of such claim.” Id. [2]

The triathlon took place on June 26, 2010. At approximately 8:30 a.m., Decedent entered the Schuylkill River to begin the first segment of the race. Tragically, Decedent never completed the swimming portion of the competition. Divers retrieved Decedent’s body from the river the next day after he presumably drowned while participating in the triathlon. On April 12, 2012, Decedent’s widow, Michele Valentino, both in her own right and as administratrix of her husband’s estate (referred to as “Appellant” herein), asserted wrongful death and survival claims against various defendants, including Triathlon. Only the wrongful death claim is at issue in this appeal. Appellant subsequently amended her complaint and the defendants filed preliminary objections. On July 27, 2012, the trial court sustained the defendants’ preliminary objections and struck all references in the complaint that referred to outrageous acts, gross negligence, recklessness, and punitive damages, holding that these averments were legally insufficient as the facts alleged demonstrated only ordinary negligence. The trial court further struck particular paragraphs of the amended complaint on grounds that they lacked specificity.

In December of 2012, following the various defendants’ filing of an answer and new matter, the defendants moved for summary judgment, asserting the Agreement as an affirmative defense. The trial court denied summary judgment, finding that questions of material fact remained regarding the existence of the Agreement. Appellant thereafter stipulated to the dismissal of all defendants except Triathlon. Once discovery was completed, Triathlon again moved for summary judgment. Concluding that the evidence at that point in the proceedings demonstrated that the Agreement was among Decedent’s possessions and was valid and enforceable, the trial court granted summary judgment in favor of Triathlon.

Prior to the trial court issuing its Pa.R.A.P. 1925(a) opinion explaining its rationale for granting summary judgment in favor of Triathlon, the Superior Court, in an unrelated matter, decided the case of Pisano v. Extendicare Homes, Inc., 77 A.3d 651 (Pa. Super. 2013), which held that a non-signatory wrongful death claimant was not bound by an arbitration agreement signed by a decedent.[3] Id. at 663. On April 14, 2012, shortly after Pisano was decided, the trial court issued its Pa.R.A.P. 1925(a) opinion in this matter and urged the Superior Court to vacate its order granting summary judgment in favor of Triathlon based on that decision.

Relying upon Pisano, Appellant argued to the Superior Court that Decedent’s Agreement with Triathlon does not apply to her as a non-signatory and, thus, has no preclusive effect upon her wrongful death claims asserted against Triathlon. In response, Triathlon contended that Decedent’s assumption of the risks inherent in participation in the event relieved its duty of care, thereby rendering Triathlon’s conduct non-tortious as a matter of law. The Triathlon maintained that, absent tortious activity, a wrongful death claim could not succeed because the Wrongful Death Act premises recovery upon “the wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301.

Initially, on December 30, 2015, a divided panel of the Superior Court reversed the trial court’s order in part, holding that under Pisano, Decedent’s Agreement was not applicable to Appellant because she was not a signatory to the contract. The Superior Court thereafter granted en banc argument and withdrew its panel decision.

On November 15, 2016, an en banc Superior Court affirmed the trial court’s order granting Triathlon summary judgment in a published decision. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016). Preliminarily, the Superior Court acknowledged that because a wrongful death claim is not derivative of a decedent’s cause of action, “a decedent may not compromise or diminish a wrongful death claimant’s right of action without consent.” Id. at 493. Nevertheless, the Superior Court went on to hold that “a third-party wrongful death claimant is subject to substantive defenses supported by the decedent’s actions or agreements where offered to relieve the defendant, either wholly or partially, from liability by showing that the defendant’s actions were not tortious.” Id.

The Superior Court found that the available substantive defense here was Decedent’s contractual assumption of the risks inherent in participation in the triathlon.

The assumption of the risk doctrine, set forth in Section 496A of the Restatement Second of Torts, provides that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.” Restatement Second of Torts, § 496A. Comment c(1) to Section 496A provides that the express assumption of the risk “means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.” Id. at cmt. c(1). Notably, the Comment goes on to state that “[t]he result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.” Id.

Pennsylvania case law illustrates that one’s assumption of the risks inherent in a particular activity eliminates the defendant’s duty of care. SeeHughes v. Seven Springs Farm Inc., 563 Pa. 501, 762 A.2d 339, 343 (2000) (explaining that under Section 496A of the Restatement Second of Torts, where the plaintiff assumes the risk of harm, the defendant is under no duty to protect the plaintiff from such risks); Carrender v. Fitterer, 503 Pa. 178, 469 A.2d 120, 125 (1983) (explaining that one’s assumption of the risk of injury is simply another way of expressing the lack of duty on the part of the defendant to protect against such risks); Thompson v. Ginkel, 95 A.3d 900, 906 (Pa. Super. 2014) (citation omitted) (acknowledging that the assumption of the risk doctrine is a function of the duty analysis required in all negligence actions).

Relying on this substantive tort law, the Superior Court in the instant case held that by knowingly and voluntarily executing a valid agreement expressly assuming the risks inherent in participating in the sporting event, Decedent extinguished Triathlon’s duty of care, thereby rendering its conduct not tortious. Valentino, 150 A.3d at 493.[4] As noted, the intermediate appellate court concluded that absent tortious conduct, Appellant’s wrongful death claim could not survive as a matter of law; thus, the trial court did not err in granting summary judgment in favor of Triathlon. Id.

The Superior Court in the instant case readily distinguished Pisano on the ground that it did not involve an agreement to assume all risks inherent in a particular activity, which would serve to eliminate the duty element of the wrongful death action against the alleged tortfeasor. Acknowledging Pisano’s principle that a third party’s right of action in a wrongful death claim is an independent statutory claim of a decedent’s heirs and is not derivative of a decedent’s right of action, the Superior Court emphasized that “a wrongful death claim still requires a tortious injury to succeed.” Valentino, 150 A.3d at 493. The Superior Court cogently explained that Pisano does not undermine the fundamental principle that a statutory claimant in a wrongful death action has the burden of proving that the defendant’s tortious conduct caused the decedent’s death. It opined that this cannot occur where the

decedent assumed all risks inherent in participating in the activity and thereby abrogated any duty the putative tortfeasor may have had. Id.

Similarly, the Superior Court distinguished this Court’s decision in Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), upon which Appellant had relied. Valentino, 150 A.3d at 495. In that case, James Buttermore was injured in an automobile accident and signed a release in settlement of his claim against the tortfeasors for the sum of $25,000, agreeing to release all persons from liability. Buttermore, 561 A.2d at 734. The issue on appeal to this Court was whether Buttermore’s wife, who was not a signatory to the settlement agreement, had an independent right to sue the tortfeasors for loss of consortium. Id. at 735. Acknowledging that the release applied to all tortfeasors, including the defendants, this Court held that one could not bargain away the rights of others who were not a party to the contract. Id. Because Buttermore’s wife was not a party to her husband’s settlement agreement and because she sought to sue in her own right for loss of consortium, we held that she had an independent cause of action, unaffected by her husband’s settlement agreement. Id. at 736.

The Superior Court below distinguished Buttermore, finding that unlike the express assumption of the risk agreement here, the settlement agreement in Buttermore did not extinguish a requisite element of the wife’s loss of consortium claim. Valentino, 150 A.3d at 496. Stated differently, unlike the express assumption of the risk agreement in the instant case, nothing in the settlement agreement in Buttermore precluded the finding that the defendants acted tortiously.

We agree with the Superior Court’s application of well-settled tort law and its conclusion that the assumption of the risk agreement entered into between Decedent and the Triathlon operates much differently than the settlement agreement in Buttermore and the arbitration agreement in Pisano, as the latter agreements do not preclude a finding that the defendant acted tortiously. We further agree with the intermediate appellate court that a decedent’s valid assumption of the risk agreement does not negate his heir’s right to commence a wrongful death lawsuit, but it “can support a defense asserting that the alleged tortfeasor owed no duty to the decedent.” Valentino, 150 A.3d at 494.

Accordingly, once Decedent extinguished Triathlon’s duty of care by expressly assuming all risks in the inherently dangerous sporting event, his heir could not resurrect that duty of care after his death. To do so would afford a decedent’s heirs more rights than those possessed by a decedent while alive. Such a result not only defies logic, but also the statutory requisites for a wrongful death claim. As there is no genuine issue of material fact and it is clear that Triathlon is entitled to judgment as a matter of law, we would affirm the judgment of the Superior Court, which affirmed the trial court order granting summary judgment in Triathlon’s favor. See Pa.R.C.P. 1035.2 (providing that summary judgment is appropriate only when there is no genuine issue as to any material fact or when a party which will bear the burden of proof has failed to present evidence sufficient to present the issue to the jury).

As noted, regarding the OISR’s sua sponte public policy declaration, our primary objection is that the issue of whether the express assumption of the risk agreement violates public policy is not properly before the Court; thus, the grant of relief on this claim cannot serve as a means to disturb the judgment of the Superior Court.

SeeSteiner v. Markel, 600 Pa. 515, 968 A.2d 1253, 1256 (2009) (holding that an appellate court may not reverse a judgment on a basis that was not properly raised and preserved by the parties).

Additionally, we observe that the OISR declares the express assumption of the risk agreement violative of the public policy set forth in the Wrongful Death Act, i.e., to compensate family members of victims of tortious conduct, without any explanation as to how tortious conduct can exist in the absence of a duty of care. Further, the OISR seeks to invalidate not all express assumption of the risk contracts, but only those relating to wrongful death claims, based upon the public policy set forth in the Wrongful Death Act. Accordingly, under the OISR’s reasoning, express assumption of the risk agreements would generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity, but would be invalid where a participant’s injuries were fatal and his heirs sought recovery for wrongful death. Thus, a participant who suffered grievous non-fatal injury would have no redress, but his family would have redress if the participant succumbed to his injuries.

This result is untenable as there is no evidence to suggest that it is the public policy of the Commonwealth of Pennsylvania to elevate the rights of victims’ heirs over those of the victims themselves or to immunize wrongful death claims from ordinary and readily available defenses. In fact, not only did the General Assembly premise recovery in wrongful death on the precise tortious conduct that caused the decedent’s fatal injuries, but directed expressly that a wrongful death action “may be brought, under procedures prescribed by general rules.” 42 Pa.C.S. § 8301(a). There is simply no provision in the Wrongful Death Act that renders an heir’s entitlement to relief absolute. Had the Legislature intended that mandate, it would have so directed.

Moreover, it is not the role of this Court to create the public policy of this Commonwealth. Instead, “public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest.” Burstein v. Prudential Prop. & Cas. Ins. Co., 570 Pa. 177, 809 A.2d 204, 207 (2002) (quoting Eichelman v. Nationwide Ins. Co., 551 Pa. 558, 711 A.2d 1006, 1008 (1998)). We have held that “only dominant public policy” justifies the invalidation of a contract and in the “absence of a plain indication of that policy through long governmental practice or statutory enactments, or violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy.” Burstein, 809 A.2d at 207. Significantly, we have acknowledged that in such circumstances, “courts must be content to await legislative action.” Id.

The OISR fails to heed this warning. By declaring the public policy of this Commonwealth, untethered to legislative fiat and in a case where the issue is not before us, the OISR comes dangerously close to displacing the legislative process with judicial will. Accordingly, we would affirm the judgment of the Superior Court, which affirmed the order granting summary judgment in favor of the Triathlon. While the facts of this case are most tragic, this Court may not afford relief where the law does not so provide.

Chief Justice Saylor and Justice Todd join this opinion in support of affirmance.

OPINION IN SUPPORT OF REVERSAL

DOUGHERTY, JUSTICE.

The question before the Court is whether the Superior Court erred when it determined

a pre-injury exculpatory waiver signed by a triathlon participant provides a complete defense to claims brought by the participant’s non-signatory heirs pursuant to the Wrongful Death Act, 42 Pa.C.S. § 8301. We would find the waiver is unenforceable against the heirs and does not preclude their wrongful death action. We would therefore reverse the Superior Court’s decision and remand to the trial court for further proceedings.

In 2010, appellee Philadelphia Triathlon, LLC, organized the Philadelphia Insurance Triathlon Sprint (the Triathlon). The Triathlon consisted of three events: (1) a 0.5 mile swim; (2) a 15.7 mile bicycle race; and (3) a 3.1 mile run. The swim portion of the Triathlon took place in the Schuylkill River in Philadelphia, Pennsylvania. As a participant in the Triathlon, Decedent, Derek Valentino, registered as a participant for the Triathlon and executed a Waiver and Release of Liability (the Waiver) by affixing his electronic signature to an online registration form.

On race day, at approximately 8:30 a.m., Decedent entered the Schuylkill River for the swim portion of the Triathlon, but he did not complete the swim and, on the following day, his body was recovered from the Schuylkill River. There is no dispute Decedent drowned in the river while participating in the Triathlon. SeeValentino v. Phila. Ins. Co., No. 120401417, 2014 WL 4796614, at *1 (Pa. Com. Pl. Aug. 26, 2014).

Appellant Michele Valentino filed a lawsuit in her individual capacity and as Administratrix of the Estate of Derek Valentino, against several defendants, including appellee, asserting survival claims on Decedent’s behalf and wrongful death claims on her own behalf and that of her children.[1] See Amended Complaint at ¶¶ 26-28, 34-36, citing 42 Pa.C.S. § 8302 (Survival Act provides “[a]ll causes of action or proceedings, real or personal, shall survive the death of the plaintiff or of the defendant …”); Amended Complaint at ¶¶29-33, 37-41, citing 42 Pa.C.S. § 8301(a), (b) (Wrongful Death Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”).[2] In response to preliminary objections, the trial court entered orders striking from the complaint all references to outrageous acts, gross negligence and recklessness. The trial court also struck appellant’s claim for punitive damages. Remaining in the case were several allegations of ordinary negligence, specifically, that appellee failed to: make a

reasonable inspection of the premises and event course; remove or take measures to prevent dangerous conditions; follow rules, regulations, policies and procedures governing safety standards; properly train the Triathlon’s agents, servants and employees with respect to safety rules, regulations, policies and procedures; properly supervise the Triathlon’s employees to ensure the Triathlon was conducted in a reasonable and safe manner; properly construct or design a safe event route to avoid dangerous conditions; regulate or control the number of individuals participating in each phase of the race simultaneously; have proper rules, regulations, policies and procedures for the timely recognition and response of event participants in distress and need of rescue; and have adequate safety personnel on hand for each aspect of the event. Seeid. at ¶ 22(b), (d) & (f) – (l).

Thereafter, appellee filed an answer with new matter, claiming Decedent was sufficiently negligent himself to completely bar appellant’s recovery, or alternatively, to reduce appellant’s recovery in accordance with the amount of comparative negligence attributed to Decedent. See Answer with New Matter at ¶43, citing Comparative Negligence Act, 42 Pa.C.S. § 7102. In addition, appellee asserted the complete defense of assumption of risk, claiming it owed no duty to Decedent or his survivors based on Decedent’s execution of the Waiver. Id. at ¶¶44, 46.

a. Summary Judgment

On September 30, 2013, the trial court granted appellee’s motion for summary judgment and dismissed all of appellant’s remaining claims with prejudice. On appellant’s motion for reconsideration, the court opined summary judgment on the survival action was proper based on the Waiver. Valentino, 2014 WL 4796614, at *2. The court reversed itself regarding appellant’s wrongful death action, and opined that claim should be remanded for further proceedings based on the Superior Court’s decision in Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 663 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa. 2014) (resident-decedent’s contractual agreement with nursing home to arbitrate all claims was not binding on non-signatory wrongful death claimants). Id. at *3. In recommending the wrongful death action be remanded, the trial court observed “a decedent can contract away his own right to recover in court under a survival action, [but] he cannot similarly alienate the rights of third parties to recover in their own wrongful death actions.” Id.

b. Superior Court

A divided en banc panel of the Superior Court subsequently affirmed summary judgment on all claims. Valentino v. Phila. Triathlon, LLC, 150 A.3d 483 (Pa. Super. 2016).[3] The majority reasoned that, for a decedent’s heirs to recover damages in a wrongful death action, there must be an underlying tortious act by the defendant. See id. at 492-93, quotingKaczorowski v. Kalkosinski, 321 Pa. 438, 184 A. 663, 664 (1936) (“… a right to recover must exist in the party injured when he died in order to entitle[ ] those named in the act to sue…. [W]here the deceased would have been barred by contributory negligence, or by the statute of limitations, the parties suing for his death are likewise barred.”) (internal citations omitted). The majority further held its own decision in Pisano, which allowed non-signatory wrongful death claimants to file a court action despite their decedent’s execution of an arbitration

agreement, is limited to the facts of that case. Id. at 493. The majority opined an heir’s right to recover for her decedent’s wrongful death is dependent upon the existence of a tortious act that caused the death, stating “while a third party’s wrongful death claim is not derivative of the decedent’s right of action, a wrongful death claim still requires a tortious injury to succeed.” Id. Underpinning the en banc majority’s analysis was its position that arbitration and settlement agreements “bind[ ] only the parties to the agreement while the [liability waiver] extends to non-signatory third-parties.” Id. at 497 n.9. The en banc majority considered the Waiver to be an express assumption of all risks which eliminated any legal duty otherwise owed to anyone by appellee, creating a complete bar to tort liability.[4] Id.

Appellant filed a petition for allowance of appeal and this Court granted review of two questions:

Whether the Superior Court erred when it determined that a waiver of liability form, executed solely by the decedent, and stating the signer assumes all risks of participation in a triathlon, also binds his heirs, thereby precluding them from bringing a wrongful death action?

Whether the defense of assumption of risk should be abolished except in those situations where it is specifically permitted by the Comparative Negligence Act?[5]

Valentino v. Phila. Triathlon, LLC, 641 Pa. 515, 168 A.3d 1283 (2017) (per curiam ).

Our standard and scope of review on appeal from summary judgment are well-established. “[A]n appellate court may reverse the entry of summary judgment only where it finds that the trial court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to judgment as a matter of law.” Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1004 (2003), citingPappas v. Asbel, 564 Pa. 407, 768 A.2d 1089 (2001). In determining whether the lower court erred in granting summary judgment, the standard of review is de novo and the scope of review is plenary. Liss & Marion, P.C. v. Recordex Acquisition Corp., 603 Pa. 198, 983 A.2d 652, 657 (2009), citingLJL Transp., Inc. v. Pilot Air Freight Corp., 599 Pa. 546, 962 A.2d 639, 647 (2009). We consider the parties’ arguments with these standards in mind.

II.

Appellant argues the Superior Court erred in determining the Waiver, which

was executed solely by Decedent, barred his heirs’ wrongful death action. Appellant first notes wrongful death actions are statutorily authorized in Pennsylvania:

(a) General rule.–An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime and any prior actions for the same injuries are consolidated with the wrongful death claim so as to avoid a duplicate recovery.

42 Pa.C.S. § 8301(a). Relying on Pennsylvania jurisprudence, appellant argues a wrongful death action is derivative of the victim’s fatal injuries, but is nevertheless meant to compensate a decedent’s survivors “for the pecuniary loss they have sustained by the denial of future contributions decedent would have made in his or her lifetime.” Appellant’s Brief at 13-15, quotingFrey v. Pa. Elec. Comp., 414 Pa.Super. 535, 607 A.2d 796, 798 (1992), and citingTulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992), Kaczorowski, 184 A. at 664 (wrongful death claim is “derivative” because “it has as its basis the same tortious act which would have supported the injured party’s own cause of action”).

Appellant relies on Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), where the tort-victim husband executed a general release and settlement agreement after a car accident which purported to waive recovery by “any and all other persons associations and/or corporations[.]” Appellant’s Brief at 15-16, quotingButtermore, 561 A.2d at 734. Plaintiff’s wife did not sign the release agreement. The Buttermores filed a suit against medical professionals who treated him after the accident, including a claim brought by wife for loss of consortium. Seeid. at 16. On appeal from summary judgment, this Court ruled husband’s claim was barred by the release he executed, but wife’s claim was not because she herself had not signed it. Id., citingButtermore, 561 A.2d at 736. Appellant argues the lower courts’ ruling the Waiver in this case, which only Decedent signed, bars his heirs’ wrongful death claims is in direct contravention of Buttermore . Id. at 17-18, citingButtermore, 561 A.2d at 735.

In response, appellee contends summary judgment was properly entered and dismissal of appellant’s wrongful death claims should be affirmed. Appellee argues a wrongful death action is derivative of, and dependent upon, a tortious act that results in decedent’s death. Appellee’s Brief at 13, citingCentofanti v. Pa. R. Co., 244 Pa. 255, 90 A. 558, 561 (1914) (additional citations omitted). Appellee insists the Superior Court correctly determined Decedent’s execution of the Waiver meant appellee’s conduct was rendered non-tortious in all respects because appellee no longer owed Decedent any duty of care. Id. at 16-17, citingMontagazzi v. Crisci, 994 A.2d 626, 635 (Pa. Super. 2010) (plaintiff knowingly and voluntarily encountering an obvious and dangerous risk relieves those “who may have otherwise had a duty”); Staub v. Toy Factory, Inc., 749 A.2d 522, 526 (Pa. Super. 2000) (en banc ) (“Our [S]upreme [C]ourt appears to have concluded that in a negligence action, the question whether a litigant has assumed the risk is a question of law as part of the court’s duty analysis ….”) (additional citations omitted). Appellee also argues Pisano is not applicable here. Appellee contends Pisano determined only the narrow issue of whether a wrongful death plaintiff is bound by an arbitration agreement which she did not sign, and is not relevant to questions regarding

the exculpatory Waiver signed by Decedent. Seeid. at 24.

III.

The Wrongful Death Act (the Act), provides an independent statutory cause of action that belongs to specific claimants, i.e. the surviving spouse, children or parents of the deceased. 42 Pa.C.S. § 8301 (Act provides spouse, children or parents of decedent can bring action “to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another”). SeeKaczorowski, 184 A. at 665 (“By the statute there is given an explicit and independent right of action to recover the damages peculiarly suffered by the parties named therein.”). This statutory claim for wrongful death “is derivative because it has as its basis the same tortious act which would have supported the injured party’s own cause of action. Its derivation, however, is from the tortious act and not from the person of the deceased, so that it comes to the parties named in the statute free from personal disabilities arising from the relationship of the injured party and tort-feasor.” Id. at 664 (internal citations omitted). Accordingly, Pennsylvania courts recognize that while wrongful death actions seek damages for losses to heirs arising from their relative’s wrongful death, the claims are not derivative of — or limited by — the decedent’s own rights. SeePisano, 77 A.3d at 660.

It is clear the General Assembly intended the Act to compensate the decedent’s surviving heirs, not the decedent himself, whose own losses are encompassed in a survival action. Compare 42 Pa.C.S. § 8301(wrongful death) with 42 Pa.C.S. § 8302 (survival); see alsoAmato v. Bell & Gossett, 116 A.3d 607, 625 (Pa. Super. 2015), quotingHatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1235 (Pa. Super. 2012) (“The purpose of the Wrongful Death Statute … is to compensate the decedent’s survivors for the pecuniary losses they have sustained as a result of the decedent’s death…. A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they have sustained as a result of the decedent’s death.”) (additional citations omitted). The Act is thus designed to assure a decedent’s heirs may seek compensation “for the loss of pecuniary benefits which [they] would have received from the deceased had death not intervened.” Kaczorowski, 184 A. at 665. Also, the Act is a remedial statute, and as such it must be liberally interpreted to effect its purpose and promote justice. 1 Pa.C.S. § 1928(c); Amadio v. Levin, 509 Pa. 199, 501 A.2d 1085, 1087 (1985) (wrongful death statute is “remedial in nature and purpose, and as such should be liberally construed to accomplish the objective of the act”); see alsoO’Rourke v. Commonwealth, 566 Pa. 161, 778 A.2d 1194, 1203 (2001) (noting remedial statutes are to be liberally construed to effect objectives).

With these principles and the legislative purpose of the Act in mind, we must determine whether the Waiver provides a complete defense to a wrongful death claim brought by non-signatory heirs. A liability waiver is, at its core, a contract, and must be construed and interpreted in the same manner as other contracts — such as arbitration clauses or settlement agreements and releases — when determining whether it is effective against a non-signatory third party. The Waiver purports to be an exculpatory contract, and such contracts are generally disfavored by the law. SeeEmployers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966) (“contracts providing for immunity from liability for negligence must be construed strictly since

they are not favorites of the law”); see alsoSoxman v. Goodge, 372 Pa.Super. 343, 539 A.2d 826, 828 (1988) (“the law … recognized that lying behind [exculpatory] contracts is a residuum of public policy which is antagonistic to carte blanche exculpation from liability and thus developed the rule that these provisions would be strictly construed with every intendment against the party seeking their protection”), quotingPhillips Home Furnishings Inc. v. Continental Bank, 231 Pa.Super. 174, 331 A.2d 840, 843 (1974). Accordingly, a pre-injury exculpatory agreement is valid only when “it does not contravene public policy, is between parties relating entirely to their private affairs, and where each party is a free bargaining agent so that the contract is not one of adhesion.” Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1177 (2010), citingTopp Copy Prods., Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98, 99 (1993). This Court has consistently recognized the exculpatory contract is an agreement that is “intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction … [which must be] construed strictly against the party seeking [its] protection.” Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963), quotingMorton v. Ambridge Borough, 375 Pa. 630, 101 A.2d 661, 663 (1954).

Thus, in determining whether the Waiver provides a defense to appellant’s wrongful death action, we must liberally apply the remedial Act while we simultaneously construe the Waiver strictly against appellee as the party seeking protection from the contract. We would hold the Superior Court did the opposite in its decision below: the court erroneously gave the Waiver the broadest application possible while disregarding the remedial nature of the Act and the public policy considerations underpinning it.[6]

First, we note the Waiver is a contract between Decedent and appellee involving their own private affairs. Chepkevich, 2 A.3d at 1177. The Waiver includes broad language barring Triathlon participants from filing suit to recover damages for injuries or death “which may arise out of, result from, or relate to my participation in the [Triathlon], including claims for Liability caused in whole or in part by the negligence of” appellees. See Waiver attached as Exhibit A to appellee’s Answer and New Matter. However, the Waiver is plainly not an agreement between Triathlon participants’ wrongful death heirs and appellee. We emphasize a wrongful death action belongs solely to a decedent’s heirs, is intended to compensate them, and does not accrue to the decedent. SeeHatwood, 55 A.3d at 1235, quotingMachado v. Kunkel, 804 A.2d 1238, 1246 (Pa. Super. 2002) (“Under the wrongful death act the widow or family is entitled, in addition to costs, to compensation for the loss of the contributions decedent would have made …”). Thus, while a pre-injury exculpatory

waiver might indeed be effective to bar a survival claim by a decedent’s estate, it is quite another thing to conclude the decedent’s agreement acts as a complete defense to statutory claims that are specifically available to his non-signatory heirs. Appellee argues the Waiver provides a complete defense to appellant’s wrongful death claim, but in our considered view, allowing the Waiver to have this effect would require us to ignore the purpose of the Act and the public policy concerns it was specifically enacted to protect.[7]

Our conclusion is consistent with prior Pennsylvania case law arising from wrongful death actions. As this Court has stated, such lawsuits are meant to compensate the statutory beneficiaries, i.e. the spouse, children or parents of the decedent for the pecuniary losses they sustained as a result of their relative’s death. SeeTulewicz, 606 A.2d at 431. Accordingly, our courts have recognized the distinct nature of these claims and have declined to enforce a decedent’s own agreements and obligations against his heirs. SeeButtermore, 561 A.2d at 736 (release signed by husband barred his own action against hospital but not the independent action of wife, who did not sign release); Pisano, 77 A.3d at 660, citingKaczorowski, 184 A. at 664 (wrongful death claim is derived from injury to decedent but it is independent and distinct cause of action; decedent’s agreement to arbitrate not binding on non-signatory heirs); see alsoRickard v. Am. Nat’l Prop. & Cas. Co., 173 A.3d 299 (Pa. Super. 2017) (decedent’s agreement to accept insurance benefits in exchange for allowing subrogation by insurer not binding on non-signatory heirs who recovered damages in subsequent wrongful death action against tortfeasor). The Waiver in this regard is analogous to the settlement and release agreement at issue in Buttermore, or the arbitration agreement in Pisano .

We observe that the undisputed purpose of the Act is “to provide a cause of action against one whose tortious conduct caused the death of another.” Amadio, 501 A.2d at 1087. And, as we have stated, exculpatory contracts must be read narrowly. SeeDilks, 192 A.2d at 687; see alsoTayar v. Camelback Ski Corp. Inc., 616 Pa. 385, 47 A.3d 1190, 1196 (2012) (for exculpatory clause to be enforceable “contract language must be construed strictly”), quotingTopp Copy, 626 A.2d at 99. Allowing the Waiver to have a broad exculpatory effect with respect to non-signatory wrongful death claimants would essentially make the right the General Assembly created for certain heirs through the Act an illusory one. Abrogation of an express statutory right to recovery in this way violates public policy, and a pre-injury exculpatory waiver that contravenes public policy is invalid and unenforceable. Chepkevich, 2 A.3d at 1177. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). Moreover, our recognition of relevant public policy concerns in this regard does not constitute “creation” of public policy. See OISA at 947. Our law is clear that determination of whether contract terms may be avoided on public policy grounds “requires a showing of overriding public policy from legal precedents [or] governmental practice ….” Tayar, 47 A.3d at 1199. The public policy

we recognize here is well-established in both judicial precedents and statutory enactment. This Court has declined to enforce exculpatory contracts “[w]here the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, [because] that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Boyd v. Smith, 372 Pa. 306, 94 A.2d 44, 46 (1953) (exculpatory waiver of liability unenforceable on public policy grounds due to conflict with statute). Precluding the use of the Waiver as a carte blanche automatic defense to wrongful death actions comports with the remedial purpose and protection expressed in the Act. A contrary holding elevates a private contract above public policy embodied in a statutory enactment, and overrides our jurisprudence directing a narrow and strict construction of exculpatory waivers.

Accordingly, we would hold the Waiver is void and unenforceable with respect to appellant’s wrongful death claims and, as such, the Waiver should not be available to appellee as a defense in the underlying wrongful death litigation.[8] We would hold the Superior Court erred in affirming summary judgment in favor of appellee on that basis, and reverse and remand to the trial court for further proceedings on appellant’s wrongful death claim.

Justice Donohue and Justice Mundy join this opinion in support of reversal.

OPINION IN SUPPORT OF REVERSAL

DONOHUE, JUSTICE.

I join Justice Dougherty’s Opinion in Support of Reversal (“OISR”) in full. I too disagree with the Superior Court’s conclusion that the Decedent’s exculpatory agreement may serve as a complete defense to the wrongful death heir’s claim against the Triathlon. I write separately to express my view that, in light of the derivative nature of wrongful death actions, the Superior Court was technically correct in its analysis of the mechanical operation of the liability waiver in reaching its conclusion. However, when the mechanical operation of the law works to defeat the purpose of a remedial statute like the Wrongful Death Act, by way of the broad enforcement of a legally disfavored exculpatory agreement, the mechanical operation must yield.

As Justice Dougherty explains, this Court has repeatedly affirmed a requirement that exculpatory agreements must be narrowly and strictly construed because exculpatory language, which purports to relieve a person of liability even when he has negligently caused injury to another, is not favored in the law. OISR (Dougherty, J.) at 952-53, 954-55 (citing Employers Liability Assur. Corp. v. Greenville Business Men’s Ass’n., 423 Pa. 288, 224 A.2d 620, 623 (1966); Chepkevich v. Hidden Valley Resort, L.P., 607 Pa. 1, 2 A.3d 1174, 1189 (2010); Topp Copy Prods. Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993);

Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 192 A.2d 682, 687 (1963)). Here, Appellant does not challenge the validity or the enforceability of the contractual assumption of risk in the survival action she brought (as administratrix) on behalf of Decedent’s estate. Therefore, for purposes of this appeal, the liability waiver is valid and enforceable as a complete defense to the survival action. As between the Triathlon and Decedent, there is a knowing and voluntary agreement to extinguish Decedent’s ability to recover for claims of ordinary negligence.

I believe that we must, however, decline to allow the liability waiver to defeat a wrongful death action brought by heirs who never agreed, expressly or otherwise, to eliminate their statutory right to recover for their pecuniary loss resulting from the death of their loved one that, as alleged, was tortious but for the liability waiver. Allowing the liability waiver to defeat the wrongful death action, as the Superior Court did, gives the waiver the broadest possible reading, contrary to our mandate to narrowly construe such provisions. The tenet of strict construction requires that we limit this liability waiver to its narrowest effect: a bar to recovery under the survival action.

Moreover, as noted by Justice Dougherty, for an exculpatory waiver to be valid, it must meet three conditions: it must not contravene public policy, the contract must be between persons relating entirely to their own private affairs, and each party must be a free bargaining agent to the agreement so that the contract is not one of adhesion. OISR (Dougherty, J.) at 952-53 (citing Chepkevich, 2 A.3d at 1177). As to these first two prongs, this Court’s decision in Boyd v. Smith, 372 Pa. 306, 94 A.2d 44 (1953), is instructive. In Boyd, an agreement between a property owner and a tenant relieved the property owner from liability for any injury occasioned by the property owner’s negligence in the maintenance of the leased building. Boyd, 94 A.2d at 45. However, pursuant to statute, “no building … shall be used for human habitation unless it is equipped with a fire escape or fire escapes as required by law.” Id. (quoting 53 P.S. § 3962). The property in question was not equipped with fire escapes. The building caught fire and, unable to escape the building by fire escape, the tenant sustained serious injuries and sued. The property owner attempted to rely on the exculpatory agreement in the lease to avoid liability.

We declined to find the waiver enforceable, explaining:

Such a protective clause is undoubtedly valid and enforceable if it does not contravene any policy of the law, that is, if it is not a matter of interest to the public or the state but merely an agreement between persons relating entirely to their private affairs. The situation becomes an entirely different one in the eye of the law when the legislation in question is, as here, a police measure obviously intended for the protection of human life; in such event public policy does not permit an individual to waive the protection which the statute is designed to afford him.

Id. at 46. We further held, “where the legislature has, by definite and unequivocal language, determined the public policy of this Commonwealth with regard to a particular subject, that pronouncement cannot be set aside and rendered unenforceable by a contract between individuals.” Id.

We are tasked here with determining the legal effect of a liability waiver upon a third party, not the signatory – a far more extreme reach of the waiver of liability than in Boyd . However, as in Boyd, the fullest enforcement of the liability waiver would contravene an unequivocal policy determination by the General Assembly,

namely that wrongful death heirs are entitled to recover pecuniary losses from the party responsible for their provider’s death. See OISR (Dougherty, J.) at 952-53, 954.

The Wrongful Death Act, which is remedial in nature and must be construed liberally, assures that surviving heirs do not need to go without financial support nor look to public welfare agencies to shoulder the economic burden of the loss of a provider. SeeKaczorowski, 184 A. at 665; see alsoGershon v. Regency Diving Center, 368 N.J.Super. 237, 845 A.2d 720, 728 (2004) (observing that, “in many wrongful death cases the decedent was the ‘breadwinner’ and the heirs are children, incompetents or those otherwise economically dependent on the decedent”). Notably, in the case at bar, Decedent was a forty-year-old husband and father of two who worked full-time for United Parcel Service and part-time as a licensed realtor. See Appellant’s Response to Triathlon’s Motion for Summary Judgment at 2.

Allowing the Triathlon to use Decedent’s waiver of liability to defeat a wrongful death claim would require us to ignore clear public policy embedded in the wrongful death statute and our laws governing decedents more generally. Analogously, the General Assembly has for centuries prohibited spousal disinheritance by will in order to ensure the surviving spouse’s financial security after the decedent’s death. SeeIn re Houston’s Estate, 371 Pa. 396, 89 A.2d 525, 526 (1952); see also 20 Pa.C.S. § 2203 (authorizing a surviving spouse to take against the will an elective share of one-third of the deceased’s property, subject to certain exceptions, thereby ensuring the surviving spouse’s right to some inheritance). Thus, a married individual cannot eliminate his spouse’s statutory entitlement, even through an attempted disinheritance in a last will and testament. In my view, it is impossible to reconcile allowing a sporting event participant to eradicate a statutory claim for wrongful death damages when he could not accomplish a disinheritance by virtue of a will. For this reason, and because liability waivers are disfavored, I join Justice Dougherty in narrowly construing the liability waiver so that it is enforceable only in the survival action brought on behalf of Decedent’s estate, where it was not challenged. Cf.Tayar, 47 A.3d at 1203 (curtailing purported effect of waiver on public policy grounds). So construed, it has no effect on the wrongful death action. Like Justice Dougherty, I would decline to give any effect to the Decedent’s contractual waiver of the Triathlon’s duty of care in the wrongful death action because doing so would implicate public, not merely private, affairs and would contravene the policy set forth by our legislature in the Wrongful Death Act which we must liberally construe. OISR (Dougherty, J.) at 954-55; see alsoChepkevich, 2 A.3d at 1189; Boyd, 94 A.2d at 46.

———

Notes:

[1] We also granted allowance of appeal to determine whether to abolish the assumption of the risk doctrine under circumstances where the Comparative Negligence Act does not expressly permit its application. Appellant, however, waived this issue by not challenging the overall viability of the assumption of the risk doctrine in the lower tribunals. See Pa.R.A.P. 302(a) (providing that “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal”).

[2] In block capital lettering above the signature line, the Agreement stated that Decedent’s acceptance of the Agreement confirmed that he read and understood its terms, that he understood that he would surrender substantial rights, including the right to sue, and that Decedent signed the agreement freely and voluntarily. Id. This final paragraph went on to state that acceptance of the Agreement constituted “a complete and unconditional release of all liability to the greatest extent allowed by law.” Id.

[3] In Pisano, the decedent had executed an agreement at the time of his admission to a long-term care nursing facility (“Extendicare”), providing that any dispute arising from the agreement would be resolved by binding arbitration. Id. at 653. The decedent’s son subsequently commenced a wrongful death action against Extendicare in the trial court. Extendicare filed preliminary objections, seeking to have the case dismissed for lack of subject matter jurisdiction. The trial court overruled Extendicare’s preliminary objections, holding that a wrongful death action is a creature of statute and is independent of the right of action of the decedent’s estate. Id. at 654. Thus, the trial court concluded, the decedent’s agreement to arbitrate disputes did not preclude the wrongful death claim brought by the decedent’s son. Id.

The Superior Court affirmed. The court reasoned that pursuant to 42 Pa.C.S. § 8301, a wrongful death action is not derivative of the decedent’s claim, but is a separate and distinct right of action belonging to statutory claimants to compensate them for damages they sustained as a result of the decedent’s death. Id. at 656-8. The Pisano court concluded that the arbitration agreement was not binding on the decedent’s son because he was not a party to that agreement; thus, the trial court was correct in refusing to compel arbitration.

[4] Notably, the Superior Court presumed the validity of the Agreement as Appellant presented no claim to the contrary. See id. at 492 n.6 (explaining that Appellant “does not challenge the substantive validity of the liability waiver as a bar to her claims of ordinary negligence. Consequently, we need not address the validity of the exculpatory provisions in the context of this case.”). By declaring the Agreement void as against public policy, the OISR ignores this clear waiver of any challenge to the Agreement on those grounds.

[1] Appellant stipulated to the dismissal of all defendants other than appellee on January 29, 2013, and they are not involved in this appeal. See Stipulation of Dismissal Without Prejudice.

[2] In Pennsylvania, wrongful death claims are separate and distinct from survival claims, although both involve allegations of negligence against the defendant. SeeDubose v. Quinlan, 643 Pa. 244, 173 A.3d 634, 637 (2017); Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 4 (1994) (discussing differences between survival and wrongful death claims); Tulewicz v. Se. Pa. Transp. Auth., 529 Pa. 588, 606 A.2d 427, 431 (1992); (“the two actions are designed to compensate two different categories of claimants”); Pisano v. Extendicare Homes, Inc., 77 A.3d 651, 654 (Pa. Super. 2013), appeal denied, 624 Pa. 683, 86 A.3d 233 (Pa . 2014) (“Pennsylvania courts have repeatedly distinguished wrongful death claims from survival claims”). The survival claim is the “continuation of a cause of action that accrued to the plaintiff’s decedent while the decedent was alive …. On the other hand, a wrongful death action accrues to the decedent’s heirs when the decedent dies of such an injury ….” Dubose, 173 A.3d at 637. As explained more fully infra, a wrongful death claim is an independent action which belongs to the decedent’s heirs for damages aimed to compensate members of a decedent’s family for their loss. Tulewicz, 606 A.2d at 431.

[3] Judge Olson authored the majority opinion joined by P.J. Gantman, P.J.E. Bender, and Judges Bowes, Shogun and Ott.

[4] In a concurring and dissenting opinion joined by Judges Panella and Lazarus, P.J.E. Ford Elliott determined Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989) was instructive on the analysis of the Waiver, despite the majority’s effort to distinguish it. Valentino, 150 A.3d at 501-02 (Ford Elliott, P.J.E., concurring and dissenting). Judge Ford Elliott noted the Waiver is similar to the release in Buttermore, and the non-signatory heir in that case had an independent right to sue for the injury she suffered as a result of her decedent’s death. Id. Judge Ford Elliott stated the majority’s holding the Decedent’s own assumption of risk created a complete defense to his heirs’ wrongful death action would “eviscerate the Pennsylvania wrongful death statute which creates an independent and distinct cause of action, not derivative of the decedent’s rights at time of death.” Id. at 502. Judge Ford Elliott would also have relied on Pisano to reverse summary judgment. Id. at 504.

[5] This Court granted review of this second issue and ordered supplemental briefing via a per curiam order dated January 26, 2018. As acknowledged by the Opinion in Support of Affirmance (OISA), although appellant challenged the effectiveness of the Waiver as it applied to Decedent, she never questioned the overall viability of the doctrine of assumption of the risk below, and the issue is therefore waived. See OISA at 942, n.1.

[6] The OISA suggests our view of the case ignores the question before the Court. See OISA at 942-43. Respectfully, the OISA’s position reveals an overly narrow reading of the issue on appeal, i.e., whether an exculpatory contract can be enforced against non-signatory heirs in a claim made pursuant to the Wrongful Death Act. Seesupra at 950-51. In answering that question, we examine the terms of the Waiver within the context in which it is to be enforced. We cannot disregard the nature of the underlying suit and our jurisprudence guiding our interpretation of exculpatory contracts, which specifically includes a consideration of public policy. SeeChepkevich, 2 A.3d at 1177 (exculpatory agreement is valid only when “it does not contravene public policy …”). Although the question granted on appeal did not include the term “public policy,” we must surely consider public policy when determining whether an exculpatory agreement is valid and enforceable under the given circumstances.

[7] The OISA accurately observes an exculpatory agreement would “generally be valid to preclude a participant’s ordinary negligence claims against the purveyor of an inherently dangerous sport or activity,” but nevertheless rejects our view that the same waiver could be ineffective as a defense in a wrongful death claim while providing a viable defense in a survival action. See OISA at 947. We consider the disparate treatment of the Waiver in the two causes of action to be the direct result of the different goals and purposes served by the relevant statutes. Seesupra at 942, n.2.

[8] Importantly, our holding would not render appellee defenseless in that litigation, despite the OISA statement our reading means appellant’s right to relief is “absolute”. See OISA at 947. We recognize a wrongful death action is a tort claim arising from the alleged “wrongful act or neglect or unlawful violence or negligence of another.” 42 Pa.C.S. § 8301. Appellant must still prove the elements of her case, including causation, before any recovery would be assured. See, e.g.,Phillips v. Cricket Lighters, 576 Pa. 644, 841 A.2d 1000, 1008 (2003) (to maintain negligence action, plaintiff must show defendant had duty to conform to standard of conduct, breach of duty, the breach caused the injury, and the injury resulted in damages).

———


How Long Should I hold onto Releases/Assumption of the risk Forms

There are several factors you need to find out before you can identify the exact number of years to hold on to contracts, assumption of the risk forms and releases. However, with modern technology, it does not matter anymore, hold onto them forever.

The old method

When boxes of releases were common, we used to calculate how long you should hold onto documents. The calculation relied on two major factors: The statute of limitations for a tort in your state and the age of the participant or person signing the document.

In most states, the statute of limitations for torts is two or three years. For an adult, you would hold on to a release for the statute of limitations plus one year. That plus one year is ” in case” (also translated meaning lawyer paranoia). That means in Colorado three years after an event, trip or whatever had ended you can shred the documents.

If the person was a minor, no matter if the minor signed it or their parent, you hold onto the document for the number of years until the minor turns eighteen (19 in Mississippi and 21 in Nebraska). (See The age that minors become adults.) You add those years to the statute of limitations.

As an example

Statute of Limitations in Colorado is two years for a tort.    2

Minor was 14 at the time of his injury: 18-14 =    4

One year just in case.    1

You would hold onto that release for seven years.    7

The reason for this is the minor can sue once he reaches the age of 18, until the statute of limitations runs. 99% of lawsuits for minors are started immediately, but you never know when a minor might decide that mom, and dad missed the boat when college tuition is needed.

However, sorting releases and assumption of the risk agreements signed by minors from those signed by adults was time consuming so the length of time to hold onto a release became forever. It was easier to collect and store the files then it was to sort them.

New Method = Forever, but a lot faster and easier

Scan the releases into a PDF file and store them on several hard drivers, thumb drives or in the cloud forever. You DO NOT need to sort them by name or separate them out into individual files. Just store them by date.

So, everyone who went Whitewater rafting on June 2, 2019 would be in the PDF dated 6.2.19. If you needed the release, you can just pull up the file and search or do a manual scan for the right release. Since a copy of the original is as good as the original, you do not need to keep the original. Colorado Rules of Evidence 1002; Federal Rules of Evidence 1002.

The exception to this rule would be if you know that someone was injured. You then need to go through a multi-step process.

  1. Scan the releases, including the one signed by the injured party and store them like all other releases. You do this with all the participants on the trip or program. You may need to contact the other parties as witnesses and having them in the same group as the injured party makes the other people at the event or on the boat easy to find.
  2. Collect all other necessary data that may be important years later. Examples of this might include:
    1. A roster of participants at the event
    2. A roster of staff attending the event
    3. All witness lists.
    4. All information and marketing material used to promote the event.
    5. Copy of the Weather report, water level, snow report, etc. for the day
    6. Program, Handouts, Agenda’s etc.
    7. Maintenance logs for equipment used in the event.
    8. Training, certifications, etc., of all staff for the activity
    9. Any photographs/videos of the activity
      1. Any photographs/videos from before the activity
      2. Any photographs/videos from after the activity
    10. Map of the area, as current as possible
    11. Etc.
  3. Take this information you have collected and scan it all into an electronic format.
    1. Send copies to your attorney(s)
    2. Send copies to your insurance company

      Tell them it is for safe keeping.

  4. Make paper copies of all paper and send a complete set of copies to your insurance company and attorney. Ask both what to do with the originals.
    1. Keep one good set of copies for yourself if you are told to send the originals to the insurance company or attorney, if not keep the originals.

For paper files, I suggest using a file or folder color that will attract attention, so they are not thrown out by accident. Red, Orange or Yellow good colors of files or folder colors to use. Keep the paperwork in a closed folder or envelope. Put everything in and seal it shut so nothing can fall out and the store this file somewhere so everyone knows where it is and why. If you find more information after you have sealed the first envelope or folder, create a second one, and write 1 of 2 and 2 of 2 on them. Put a large rubber band around both or secure them some way, so they do not get separated. Always right the last name of the injured party and the date on the outside so they don’t have to be opened to determine what files they contain.

After 10 years, you can shred these files.

Instead of having a warehouse full of releases or a back wall of your office with an additional 12 inches of insulation, you can have a hard drive of all the necessary documents needed in case of litigation.

What do you think? Leave a comment.

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Another trade associations confuses marketing and law: if you don’t understand the legal meaning of a word don’t use it like you do

ATTA article promotes goals for guides worldwide by calling them standards which in the US are the legally lowest possible acceptable level of acting.

The Adventure Travel Trade Association recently posted an article showing their research indicated that no standards existed for guides. Those standards were promoted by the association as needed to promote quality.

We view standards as critical to the future of the adventure travel industry’s success. As it is growing radically in participation numbers, it’s key that the operators expanding and joining the industry be of the best quality.

Their research is slightly flawed. Several states have laws regarding guiding, Colorado, West Virginia, Montana and California. Furthermore, the UIAA control and create guide standards in Europe, the International Climbing and Mountaineering Federation. In Europe, these guide standards are the law in some countries.

The person who promoted the idea for the ATTA gave reasons for the need for standards.

“Why do we need a more universal standard?” asked Moore, “Because the adventure travel sector is growing, because tour operators around the world are demanding it, and because destinations need it to legitimately promote adventure activities”

The idea is to create standards in a proposed group in five areas. Those areas include medical care and technical knowledge.

Based on the article clearly the ATTA is attempting to create qualifications for being a good guide. The unanswered question is, is this being done for safety reasons or for marketing reasons?

No matter the reason, the attempt will create legal problems. Legally, standards are the proof of the poorest quality not the best. A legal standard is the lowest acceptable level of care. If you fall below the legal standard, you have breached a duty of care you may owe to someone. Three examples of this are:

New Jersey Model Jury Instructions state:

5.10A            NEGLIGENCE AND ORDINARY CARE – GENERAL

To summarize, every person is required to exercise the foresight, prudence and caution which a reasonably prudent person would exercise under the same or similar circumstances.  Negligence then is a departure from that standard of care.

The Restatement of Torts is a compendium of the law.

Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”

Colorado Jury Instructions, the law given to a jury when they go to the jury room to make their decisions about a case defines standard as:

CJI-Civ. 9:9 (CLE Ed. 2009)

Jury instructions define “standard of care” as “a duty to use that degree of care which a person of similar age, experience and intelligence would ordinarily use under the same or similar circumstances.”

If you fall below the standard of care and there is an injury you have breached a duty of care to a guest. You are on your way to helping the injured guest prove you are negligent.

Remember negligence is:

·         Duty

·         Breach of that Duty

·         Injury proximately caused by the Breach of Duty

·         Damages

In order to determine if there was a breach of a duty, the jury must determine the standard of care which the defendant fell below. If a trade association lists the requirements for the standard of care, puts them on the Internet or in a book, then the association has helped put its members in a courtroom. The plaintiff instead of struggling to establish the care was below the acceptable level need only to refer to the trade association as proof of the association member’s negligence.

Standards are Not Goals or Minimum Levels of Knowledge or Skill

It is obvious from the article that the association believes the standards will be goals to which its membership will strive for its guides to attain. You can probably post on your door or website that your guides meet the standards as established by your trade association. If that happens, then no matter how much the word safety is thrown out there for proof of the reasoning, the actual reasoning is a marketing program.

Either one will still sink a member.

In effect, you are handing the attorney for an injured guest the keys to open your bank account or insurance policy and take out money by creating or having an association create standards for your industry.

If you want actual examples of this look at the Climbing Wall Association or the Association of Experiential Education. The Climbing Wall Association changed their standards to best practices, and the AEE is about gone. Is the AEE having problems a result of their “standards?” I don’t know. I do know that both organizations were big in creating standards, and their members were sued a lot. See Payouts in Outdoor Recreation

If you don’t have the time or ability or your standards are beat to a pulp in a courtroom then you starting writing meaningless crap for standards. “You should have adequate guides for the number of guests in your group.” That statement has no value and thankfully brings nothing to the courtroom, so why kill a tree by creating it?

Besides can you create one set of standards that work worldwide let along across state lines?

A medical standard is the easiest to use as an example. A standard is created based on US or UK realities. Advanced professional first aid care (EMS) is available within roughly a four-hour window. Your guides are trained in first aid based on that four-hour window.

These standards are then applied to an area where there is no EMS. Transportation to a hospital may take days, and the hospital may not come close to the idea an American may visualize when they think of hospitals.

If a US guest is injured in that area of the world will the standard apply? Yes, you agreed to the standard or the association created the standard. If nothing else the jury will see the standard as what they should use to measure the care the injured guest received.

Are you going to argue to a jury that the standards not to apply because you took the US or EU client to a third-world country? Then the jury may look at you and determine either you should have done something to ensure the safety, which you did not, or you should not have gone there. Why, because you can’t meet the standard of care, your organization created.

Look at a simple cut. On a mountain in Nepal, you would immediately stop the bleeding and bandage the wound. In some jungles of South America or South-East Asia, you may want the wound to bleed a little to help clean the wound of any bacteria or other nasty’s that entered through the cut.

How do you write the standard for Kilimanjaro where the first two days are hiking through a jungle, and the next days are spent on the mountain?

The easiest example was the classic mistake of the AEE’s first set of standards. The standards stated you must pee 100 yards from any water. In the Southwest on river trips, this may get you fined by the federal agency managing the river you are rafting. There you pee in the river. What do you do if your standard violates state or federal law? What if your standard violates a religion?

Time and Upkeep

The biggest issue with standards is upkeep. It takes months, sometimes years to create standards, how do you keep them up to date? You have navigated your way through the difference requirements of different countries, trips and laws and then a law changes, a technique improves or better first aid care becomes available.

How do you go back and re-write the standard? When do you re-write the standard? How do you communicate the new standard? How do you convince your members to change to the new standard after they have spent time training their employees on the old standard and invested money in meeting it?

If you are using the old standard after a new standard comes out do you have a grace period? (No, this was a trick question.)

Just create great ideas. Educate members and guests on what to look for in a good guide. Provide education so guides can get better.

Don’t hang a noose around your member’s necks and call it marketing.

See ATTA Advances Conversation on Adventure Guide Qualification and Performance Standards

For more articles on this topic see:

If you mix up your language, you will be held to the wrong standard in court

Marketing is marketing and Risk Management is not marketing

Can a Standard Impeded Inventions?

If you mix up your language, you will be held to the wrong standard in court

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not

Words: You cannot change a legal definition

For articles on Association Standards have been used to sue members see:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release

Plaintiff uses standards of ACCT to cost defendant $4.7 million

So if you write standards, you can, then use them to make money when someone sues your competitors

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent

What do you think? Leave a comment.

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Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Knight v. Jewett, 3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

Kendra Knight, Plaintiff and Appellant, v. Michael Jewett, Defendant and Respondent.

No. S019021

SUPREME COURT OF CALIFORNIA

3 Cal. 4th 296; 834 P.2d 696; 11 Cal. Rptr. 2d 2; 1992 Cal. LEXIS 3969; 92 Cal. Daily Op. Service 7261; 92 Daily Journal DAR 11765; 92 Daily Journal DAR 11870

August 24, 1992, Decided

PRIOR HISTORY: Superior Court of San Diego County, No. N39325, Don Martinson, Judge.

DISPOSITION: The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed.

CASE SUMMARY:

CALIFORNIA OFFICIAL REPORTS SUMMARY Plaintiff brought an action for negligence and assault and battery for injuries she sustained when defendant knocked her over and stepped on her finger during an informal touch football game. The trial court granted summary judgment for defendant. (Superior Court of San Diego County, No. N39325, Don Martinson, Judge.) The Court of Appeal, Fourth Dist., Div. One, No. D010463, affirmed.

Plaintiff brought an action for negligence and assault and battery for injuries she sustained when defendant knocked her over and stepped on her finger during an informal touch football game. The trial court granted summary judgment for defendant. (Superior Court of San Diego County, No. N39325, Don Martinson, Judge.) The Court of Appeal, Fourth Dist., Div. One, No. D010463, affirmed.

The Supreme Court affirmed. Addressing the continued viability of the doctrine of implied assumption of risk in light of the adoption of comparative negligence principles, the court held that in cases involving primary assumption of the risk, where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury, the plaintiff’s recovery is completely barred. By contrast, the court held, in cases involving secondary assumption of the risk, where the defendant does owe a duty of care to the plaintiff but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty, the doctrine has been merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. The court held that the trial court properly granted summary judgment for defendant, since he did not breach a legal duty of care owed to plaintiff when he engaged in the conduct that injured her and, therefore, her action was barred by the primary assumption of the risk doctrine. At most, the court held, the declarations established that defendant was careless or negligent, and his conduct was not even closely comparable to the type of conduct that is so reckless as to be totally outside of the range of the ordinary activity involved in the sport, which type of conduct is a prerequisite to the imposition of legal liability upon a participant in such a sport. (Opinion by George, J., with Lucas, C. J., and Arabian, J., concurring. Separate concurring and dissenting opinion by Mosk, J. Separate concurring and dissenting opinion by Panelli, J., with Baxter, J., concurring. Separate dissenting opinion by Kennard, J.)

HEADNOTES

CALIFORNIA OFFICIAL REPORTS HEADNOTES

Classified to California Digest of Official Reports

(1a) (1b) (1c) (1d) (1e) Negligence § 37–Exercise of Care by Plaintiff–Assumption of Risk–Viability in Light of Comparative Negligence Doctrine–Primary Versus Secondary Assumption of Risk: Words, Phrases, and Maxims–Primary Assumption of Risk; Secondary Assumption of Risk. –Primary assumption of the risk, which involves conduct of a defendant that does not breach a legal duty of care to the plaintiff, has not been merged into the comparative negligence system, but continues to operate as a complete bar to a plaintiff’s recovery. This is so because by engaging in such conduct, the defendant has not breached a legal duty of care to the plaintiff, and thus there is no reason to invoke comparative fault principles. By contrast, secondary assumption of risk, which involves a breach of a duty owed to a plaintiff who knowingly encounters a risk of injury caused by that breach, has been merged into the comparative fault system, and a defendant’s liability in such a case is assessed in terms of the percentage of his or her fault. In such a case, the injury may have been caused by the combined effect of the defendant’s and the plaintiff’s culpable conduct, and to retain assumption of risk as a complete defense in such a case would be contrary to the basic principle that when both parties are partially at fault, placing all of the loss on one of the parties is inherently inequitable.

[See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1104 et seq.]

(2) Negligence § 48.5–Exercise of Care Toward Particular Persons–Fireman’s Rule. –Under the firefighter’s rule, a person who starts a fire is not liable for an injury sustained by a firefighter who is summoned to fight the fire. The most persuasive explanation for this rule is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that he or she is employed to confront. (Per George, J., Lucas, C. J., and Arabian, J.)

(3) Negligence § 9–Elements of Actionable Negligence–Duty of Care–Sports Activities–Question for Court. –In cases involving personal injury sustained during sports activities, the question of the existence and scope of a defendant’s duty of care is a legal question that depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court rather than the jury. (Per George, J., Lucas, C. J., and Arabian, J.)

(4) Negligence § 36–Exercise of Care by Plaintiff–Comparative Negligence. –The comparative fault doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury, whether their responsibility rests on negligence, strict liability, or other theories of responsibility, in order to arrive at an equitable apportionment or allocation of loss. (Per George, J., Lucas, C. J., and Arabian, J.)

(5) Premises Liability § 6–Owner’s Duty of Care–Dangerous Conditions. –A property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. (Per George, J., Lucas, C. J., and Arabian, J.)

(6a) (6b) Premises Liability § 6–Owner’s Duty of Care–Dangerous Conditions–Ski Resorts. –Although moguls on a ski run pose a risk of harm to skiers that might not exist if those configurations were removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. A ski resort does, however, have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The latter type of risk, posed by a ski resort’s negligence, clearly is not an inherent risk of the sport assumed by a participant. (Per George, J., Lucas, C. J., and Arabian, J.)

(7a) (7b) Negligence § 10–Elements of Actionable Negligence–Standard of Care–Lower Standard for Sports Activities. –Although a defendant generally has no legal duty to eliminate, or to protect a plaintiff against, the risks inherent in a sport, a defendant generally does have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. In some situations, the careless conduct of others is considered an inherent risk of a sport for which recovery is barred. (Per George, J., Lucas, C. J., and Arabian, J.)

(8a) (8b) Negligence § 9–Elements of Actionable Negligence–Duty of Care–Sports Activities–Participant’s Duty of Care. –A sporting event participant is not liable for ordinary careless conduct engaged in during the sport, but only for intentionally injuring another player or engaging in reckless conduct that is totally outside the range of ordinary activity involved in the sport. This is so because in the heat of an active sporting event, a participant’s normal energetic conduct often includes accidentally careless behavior, and vigorous participation in sporting events might be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. In such a sport, even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.

(9a) (9b) Negligence § 37–Exercise of Care by Plaintiff–Assumption of Risk–Player Injured in Touch Football Game. –In a touch football player’s action against an opposing player for negligence and assault and battery arising from an injury sustained during a touch football game, the trial court properly granted summary judgment for defendant. Defendant, in engaging in the conduct that injured plaintiff, did not breach a legal duty of care owed to plaintiff and, therefore, plaintiff’s recovery was barred by the primary assumption of risk doctrine. The declarations filed in support of and in opposition to the motion established that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintained that defendant’s rough play was reckless, the conduct alleged was not even closely comparable to the type of conduct that is so reckless as to be totally outside of the range of the ordinary activity involved in the sport, which type of conduct is a prerequisite to the imposition of legal liability upon a participant in such a sport.

COUNSEL: Steven H. Wilhelm for Plaintiff and Appellant.

Daley & Heft, Sarah H. Mason, Dennis W. Daley, Joseph M. Hnylka and Patricia A. Shaffer for Defendant and Respondent.

JUDGES: Opinion by George, J., with Lucas, C. J., and Arabian, J., concurring. Separate concurring and dissenting opinion by Mosk, J. Separate concurring and dissenting opinion by Panelli, J., with Baxter, J., concurring. Separate dissenting opinion by Kennard, J.

OPINION BY: GEORGE, J.

OPINION

[*299] [**697] [***3] In this case, and in the companion case of Ford v. Gouin, post, page 339 [11 Cal.Rptr.2d 30, 834 P.2d 724], we face the question of the [*300] proper application of the “assumption of risk” doctrine in light of this court’s adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393]. Although the Li decision itself addressed this issue, subsequent Court of Appeal decisions have differed in their interpretation of Li‘s discussion of this point. We granted review to resolve the conflict among the Courts of Appeal.

I

We begin with a summary of the facts of this case, as set forth in the declarations and deposition transcripts submitted in support of and in opposition to defendant’s motion for summary judgment.

On January 25, 1987, the day of the 1987 Super Bowl football game, plaintiff Kendra Knight and defendant Michael Jewett, together with a number of other social acquaintances, attended a Super Bowl party at the home of a mutual friend. During half time of the Super Bowl, several guests decided to play an informal game of touch football on an adjoining dirt lot, using a “peewee” football. Each team had four or five players and included both women and men; plaintiff and defendant were on opposing teams. No rules were explicitly discussed before the game.

Five to ten minutes into the game, defendant ran into plaintiff during a play. According to plaintiff, at that point she told defendant “not to play so rough or I was going to have to stop playing.” Her declaration stated that “[defendant] seemed to acknowledge my statement and left me with the impression that he would play less rough prospectively.” In his deposition, defendant recalled that plaintiff had asked him to “be careful,” but did not remember plaintiff saying that she would stop playing.

On the very next play, plaintiff sustained the injuries that gave rise to the present lawsuit. As defendant recalled the incident, his team was on defense on that play, and he jumped up in an attempt to intercept a pass. He touched the ball but did not catch it, and in coming down he collided with plaintiff, knocking her over. When he landed, he stepped backward onto plaintiff’s right hand, injuring her hand and little finger.

Both plaintiff and Andrea Starr, another participant in the game who was on the [**698] [***4] same team as plaintiff, recalled the incident differently from defendant. According to their declarations, at the time plaintiff was injured, Starr already had caught the pass. Defendant was running toward Starr, when he ran into plaintiff from behind, knocked her down, and stepped on her hand. Starr also stated that, after knocking plaintiff down, defendant continued [*301] running until he tagged Starr, “which tag was hard enough to cause me to lose my balance, resulting in a twisting or spraining of my ankle.”

The game ended with plaintiff’s injury, and plaintiff sought treatment shortly thereafter. After three operations failed to restore the movement in her little finger or to relieve the ongoing pain of the injury, plaintiff’s finger was amputated. Plaintiff then instituted the present proceeding, seeking damages from defendant on theories of negligence and assault and battery.

After filing an answer, defendant moved for summary judgment. Relying on the Court of Appeal decision in Ordway v. Superior Court (1988) 198 Cal.App.3d 98 [243 Cal.Rptr. 536], defendant maintained that “reasonable implied assumption of risk” continues to operate as a complete defense after Li v. Yellow Cab Co., supra, 13 Cal.3d 804 (hereafter Li), and that plaintiff’s action was barred under that doctrine. In this regard, defendant asserted that “[b]y participating in [the touch football game that resulted in her injury], plaintiff … impliedly agreed to reduce the duty of care owed to her by defendant … to only a duty to avoid reckless or intentionally harmful conduct,” and that the undisputed facts established both that he did not intend to injure plaintiff and that the acts of defendant which resulted in plaintiff’s injury were not reckless. In support of his motion, defendant submitted his own declaration setting forth his version of the incident, as summarized above, and specifically stating that he did not intend to step on plaintiff’s hand or to injure her. Defendant also attached a copy of plaintiff’s deposition in which plaintiff acknowledged that she frequently watched professional football on television and thus was generally familiar with the risks associated with the sport of football, and in which she conceded that she had no reason to believe defendant had any intention of stepping on her hand or injuring her.

In opposing the summary judgment motion, plaintiff first noted that, in contrast to the Ordway decision, the Court of Appeal decision in Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162 [191 Cal.Rptr. 578] specifically held that the doctrine of “reasonable implied assumption of risk” had been eliminated by the adoption of comparative fault principles, and thus under Segoviano the basic premise of defendant’s summary judgment motion was untenable and plaintiff was entitled to have the lawsuit proceed under comparative fault principles.

Furthermore, plaintiff maintained that even were the trial court inclined to follow the Ordway decision, there were numerous disputed material facts that precluded the granting of summary judgment in favor of defendant. First, plaintiff noted there was a clear dispute between defendant’s and [*302] plaintiff’s recollection of the specific facts of the play in which plaintiff was injured, and, in particular, of the details of defendant’s conduct that caused plaintiff’s injury. She claimed that under the facts as described by plaintiff and Starr, defendant’s conduct was at least reckless.

Second, plaintiff vigorously disputed defendant’s claim that, by participating in the game in question, she impliedly had agreed to reduce the duty of care, owed to her by defendant, to only a duty to avoid reckless or intentionally harmful conduct. Plaintiff maintained in her declaration that in view of the casual, social setting, the circumstance that women and men were joint participants in the game, and the rough dirt surface on which the game was played, she anticipated from the outset that it was the kind of “mock” football game in which there would be no forceful pushing or hard hitting or shoving. Plaintiff also asserted that the declarations and depositions of other players in the game, included in her opposition papers, demonstrated that the other participants, including defendant, [**699] [***5] shared her expectations and assumptions that the game was to be a “mellow” one and not a serious, competitive athletic event. 1 Plaintiff claimed that there had been no injuries during touch football games in which she had participated on previous occasions, and that in view of the circumstances under which the game was played, “[t]he only type of injury which I reasonably anticipated would have been something in the nature of a bruise or bump.”

1 The portion of defendant’s deposition attached to plaintiff’s opposition included the following passage:

“Q: …. [F]rom your perspective–and I asked this same question of both of your friends yesterday–is the standard of care in which you were going to be dealing with people out there in the play field different, in your opinion, when you’re playing in that kind of a game, that is, the one that happened on that day versus if you’re out there playing in the exact same place and with a bunch of guys and no girls.

“A: Yeah, it would be different. Yes.

“Q: So, theoretically, you should be much more careful when the women are out there than if it was a bunch of guys?

“A: Right.”

In addition, in further support of her claim that there was at least a factual dispute as to whether she impliedly had agreed to assume the risk of injury from the type of rough play defendant assertedly engaged in, plaintiff relied on the portion of her declaration in which she stated that (1) she specifically had told defendant, immediately prior to the play in question, that defendant was playing too rough and that she would not continue to play in the game if he was going to continue such conduct, and (2) defendant had given plaintiff the impression he would refrain from such conduct. Plaintiff maintained that her statement during the game established that a disputed factual issue existed as to whether she voluntarily had chosen to assume the risks of the type of conduct allegedly engaged in by defendant.

[*303] In his reply to plaintiff’s opposition, defendant acknowledged there were some factual details–“who ran where, when and how”–that were in dispute. He contended, however, that the material facts were not in dispute, stating those facts were “that plaintiff was injured in the context of playing touch football.”

After considering the parties’ submissions, the trial court granted defendant’s motion for summary judgment. On appeal, the Court of Appeal, recognizing the existing conflict in appellate court decisions with regard to the so-called “reasonable implied assumption of risk” doctrine, concluded that Ordway v. Superior Court, supra, 198 Cal.App.3d 98, rather than Segoviano v. Housing Authority, supra, 143 Cal.App.3d 162, should be followed, and further concluded that under the Ordway decision there were no disputed material facts to be determined. The Court of Appeal, holding that the trial court properly had granted summary judgment in favor of defendant, affirmed the judgment.

As noted, we granted review to resolve the conflict among Court of Appeal decisions as to the proper application of the assumption of risk doctrine in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804.

II

As every leading tort treatise has explained, the assumption of risk doctrine long has caused confusion both in definition and application, because the phrase “assumption of risk” traditionally has been used in a number of very different factual settings involving analytically distinct legal concepts. (See, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, pp. 480-481; 4 Harper et al., The Law of Torts (2d ed. 1986) § 21.0, pp. 187-189; Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 154; 3 Speiser et al., The American Law of Torts (1986) § 12:46- 12:47, pp. 636-640.) Indeed, almost a half-century ago, Justice Frankfurter described the term “assumption of risk” as a classic example of a felicitous phrase, “undiscriminatingly used to express different and sometimes contradictory ideas,” and whose uncritical use “bedevils the law.” ( Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 [***6] S. [**700] Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).)

In some settings–for example, most cases involving sports-related injuries–past assumption of risk decisions largely have been concerned with defining the contours of the legal duty that a given class of defendants–for example, owners of baseball stadiums or ice hockey rinks–owed to an [*304] injured plaintiff. (See, e.g., Quinn v. Recreation Park Assn. (1935) 3 Cal.2d 725, 729 [46 P.2d 144] [baseball stadium owner]; [***16] Shurman v. Fresno Ice Rink (1949) 91 Cal.App.2d 469, 474-477 [205 P.2d 77] [hockey rink owner].) In other settings, the assumption of risk terminology historically was applied to situations in which it was clear that the defendant had breached a legal duty of care to the plaintiff, and the inquiry focused on whether the plaintiff knowingly and voluntarily had chosen to encounter the specific risk of harm posed by the defendant’s breach of duty. (See, e.g., Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal.Rptr. 193, 383 P.2d 777] [plaintiff hit in eye by flying piece of metal in area adjacent to drilling]; Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 161-162 [265 P.2d 904] [plaintiff injured on wet sidewalk on store premises].)

Prior to the adoption of comparative fault principles of liability, there often was no need to distinguish between the different categories of assumption of risk cases, because if a case fell into either category, the plaintiff’s recovery was totally barred. With the adoption of comparative fault, however, it became essential to differentiate between the distinct categories of cases that traditionally had been lumped together under the rubric of assumption of risk. This court’s seminal comparative fault decision in Li, supra, 13 Cal.3d 804, explicitly recognized the need for such differentiation, and attempted to explain which category of assumption of risk cases should be merged into the comparative fault system and which category should not. Accordingly, in considering the current viability of the assumption of risk doctrine in California, our analysis necessarily begins with the Li decision.

In Li, our court undertook a basic reexamination of the common law doctrine of contributory negligence. As Li noted, contributory negligence generally has been defined as ” ‘conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection, and which is a legally contributing cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.’ ” ( Li, supra, 13 Cal.3d at p. 809, quoting Rest.2d Torts, § 463.) Prior to Li, the common law rule was that ” ‘[e]xcept where the defendant has the last clear chance, the plaintiff’s contributory negligence bars recovery against a defendant whose negligent conduct would otherwise make him liable to the plaintiff for the harm sustained by him.’ ” ( Li, supra, at pp. 809-810, italics added, quoting Rest.2d Torts, § 467.)

In Li, supra, 13 Cal.3d 804, we observed that “[i]t is unnecessary for us to catalogue the enormous amount of critical comment that has been directed over the years against the ‘all-or-nothing’ approach of the doctrine of contributory negligence. The essence of that criticism has been constant and [*305] clear: the doctrine is inequitable in its operation because it fails to distribute responsibility in proportion to fault …. The basic objection to the doctrine–grounded in the primal concept that in a system in which liability is based on fault, the extent of fault should govern the extent of liability–remains irresistible to reason and all intelligent notions of fairness.” (Id. at pp. 810-811, italics added.) After taking additional note of the untoward practical consequences of the doctrine in the litigation of cases and the increasing rejection of the doctrine in other jurisdictions, the Li court concluded that “[w]e are likewise persuaded that logic, practical experience, and fundamental justice counsel against the retention of the doctrine rendering contributory negligence a complete bar to recovery–and that it should be replaced in this [**701] state by a [***7] system under which liability for damage will be borne by those whose negligence caused it in direct proportion to their respective fault.” (Id. at pp. 812-813.)

After determining that the “all-or-nothing” contributory negligence doctrine should be replaced by a system of comparative negligence, the Li court went on to undertake a rather extensive discussion of the effect that the adoption of comparative negligence would have on a number of related tort doctrines, including the doctrines of last clear chance and assumption of risk. ( Li, supra, 13 Cal.3d at pp. 823-826.)

Under the last clear chance doctrine, a defendant was rendered totally liable for an injury, even though the plaintiff’s contributory negligence had played a role in the accident, when the defendant had the “last clear chance” to avoid the accident. With regard to that doctrine, the Li decision, supra, 13 Cal.3d 804, observed: “Although several states which apply comparative negligence concepts retain the last clear chance doctrine [citation], the better reasoned position seems to be that when true comparative negligence is adopted, the need for last clear chance as a palliative of the hardships of the ‘all-or-nothing’ rule disappears and its retention results only in a windfall to the plaintiff in direct contravention of the principle of liability in proportion to fault. [Citations.]” (Id. at p. 824.) Accordingly, the court concluded that the doctrine should be “subsumed under the general process of assessing liability in proportion to fault.” (Id. at p. 826.)

(1a) With respect to the effect of the adoption of comparative negligence on the assumption of risk doctrine–the issue before us today–the Li decision, supra, 13 Cal.3d 804, stated as follows: “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a [*306] 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.’ ( Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 245-246 [53 Cal.Rptr. 545, 418 P.2d 153]; see also Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 368-369 [104 Cal.Rptr. 566]; see generally, 4 Witkin, Summary of Cal. Law [(8th ed. 1974)], Torts, § 723, pp. 3013-3014; 2 Harper & James, The Law of Torts [(1st ed. 1956)] § 21.1, pp. 1162-1168; cf. Prosser, Torts [(4th ed. 1971)] § 68, pp. 439-441.) 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. (See generally, Schwartz, [Comparative Negligence (1st ed. 1974)] ch. 9, pp. 153-175.)” ( Li. supra, 13 Cal.3d at pp. 824-825, original italics.)

As this passage indicates, the Li decision, supra, 13 Cal.3d 804, clearly contemplated that the assumption of risk doctrine was to be partially merged or subsumed into the comparative negligence scheme. Subsequent Court of Appeal decisions have disagreed, however, in interpreting Li, as to what category of assumption of risk cases would be merged into the comparative negligence scheme.

A number of appellate decisions, focusing on the language in Li indicating that assumption of risk is in reality a form [**702] [***8] of contributory negligence “where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence” (13 Cal.3d at p. 824), have concluded that Li properly should be interpreted as drawing a distinction between those assumption of risk cases in which a plaintiff “unreasonably” encounters a known risk imposed by a defendant’s negligence and those assumption of risk cases in which a plaintiff “reasonably” encounters a known risk imposed by a defendant’s negligence. (See, e.g., Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 103-105.) These decisions interpret Li as subsuming into the comparative fault scheme those cases in which the plaintiff acts unreasonably in encountering a specific known risk, but retaining the assumption of risk doctrine as a complete bar to recovery in those cases in which the plaintiff acts reasonably in encountering such a risk. Although aware of the apparent anomaly of a rule under which a plaintiff who acts reasonably is completely barred from recovery while a plaintiff who acts unreasonably [*307] only has his or her recovery reduced, these decisions nonetheless have concluded that this distinction and consequence were intended by the Li court. 2

2 In Ordway v. Superior Court, supra, 198 Cal.App.3d 98, the court suggested that the differentiation in the treatment accorded reasonable and unreasonable plaintiffs under an approach viewing “reasonable implied assumption of risk” as a complete bar to recovery was only “superficially anomalous” (Id. at p. 104), and could be explained by reference to “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 these may result in liability.” (Id. at p. 105.)

Even when the matter is viewed from the defendant’s perspective, however, this suggested dichotomy is illogical and untenable. From the standpoint of a potential defendant, it is far more logical to require that the defendant take precautions with respect to risks that the defendant reasonably can foresee being undertaken, than it would be to impose liability only for risks that the defendant is less likely to anticipate will be encountered.

Ordway also attempted to explain the anomaly by reformulating the distinction between reasonable and unreasonable assumption of risk as one between plaintiffs who make a “knowing and intelligent” choice and those who act “negligent[ly] or careless[ly]” ( Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 105), and the dissenting opinion cites this reformulated terminology with approval. (See dis. opn. by Kennard, J., post, p. 332.) The Li decision, however, specifically subsumed within comparative fault those assumption of risk cases in which a defendant ” ‘unreasonably undertakes to encounter a specific known risk’ ” ( Li, supra, 13 Cal.3d 804, 824, italics omitted and added), i.e., cases in which a defendant makes a knowing, but unreasonable, choice to undertake a risk. Indeed, in recasting the “unreasonable” assumption of risk category to include only those cases in which the plaintiff merely was careless and did not act with actual knowledge of the risk, Ordway inadvertently redefined the unreasonable assumption of risk category out of existence. The pre-Li decisions clearly held that where a plaintiff was injured as the result of a defendant’s breach of duty, the assumption of risk doctrine applied only to those instances in which the plaintiff actually knew of and appreciated the specific risk and nonetheless chose to encounter the risk. (See, e.g., Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271 [“Actual, and not merely constructive, knowledge of the danger is required.”].)

In our view, these decisions–regardless whether they reached the correct result on the facts at issue–have misinterpreted Li by suggesting that our decision contemplated less favorable legal treatment for a plaintiff who reasonably encounters a known risk than for a plaintiff who unreasonably encounters such a risk. Although the relevant passage in Li indicates that the assumption of risk doctrine would be merged into the comparative fault scheme in instances in which a plaintiff ” ‘unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence’ ” (13 Cal.3d at p. 824), nothing in this passage suggests that the assumption of risk doctrine should survive as a total bar to the plaintiff’s recovery whenever a plaintiff acts reasonably in encountering such a risk. Instead, this portion of our opinion expressly contrasts the category of assumption of risk cases which ” ‘involve contributory negligence’ ” (and which therefore [**703] [***9] should be merged into the comparative fault scheme) with those assumption of risk [*308] cases which involve ” ‘a reduction of defendant’s duty of care.’ ” (Id. at p. 825.)

Indeed, particularly when the relevant passage in Li, supra, 13 Cal.3d at pages 824-825, is read as a whole and in conjunction with the authorities it cites, we believe it becomes clear that the distinction in assumption of risk cases to which the Li court referred in this passage was not a distinction between instances in which a plaintiff unreasonably encounters a known risk imposed by a defendant’s negligence and instances in which a plaintiff reasonably encounters such a risk. Rather, the distinction to which the Li court referred was between (1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk–the category of assumption of risk that the legal commentators generally refer to as “primary assumption of risk”–and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty–what most commentators have termed “secondary assumption of risk.” 3 Properly interpreted, the relevant passage in Li provides that the category of assumption of risk cases that is not merged into the comparative negligence system and in which the plaintiff’s recovery continues to be completely barred involves those cases in which the defendant’s conduct did not breach a legal duty of care to the plaintiff, i.e., “primary assumption of risk” cases, whereas cases involving “secondary assumption of risk” properly are merged into the comprehensive comparative fault system adopted in Li. 4

3 The introductory passage from the Harper and James treatise on The Law of Torts, that was cited with approval in Li, stated in this regard: “The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiff’s assumption of a risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. In such a case, except possibly in master and servant cases, plaintiff will be barred from recovery only if he was unreasonable in encountering the risk under the circumstances. This is a form of contributory negligence. Hereafter we shall call this ‘assumption of risk in a secondary sense.’ ” (2 Harper & James, The Law of Torts (1st ed. 1956) § 21.1, p. 1162, fns. omitted, cited in Li, supra, 13 Cal.3d 804, 825.)

4 Although in the academic literature “express assumption of risk” often has been designated as a separate, contract-based species of assumption of risk distinct from both primary and secondary assumption of risk (see, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 68, p. 496), cases involving express assumption of risk are concerned with instances in which, as the result of an express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk. Thus in this respect express assumption of risk properly can be viewed as analogous to primary assumption of risk. One leading treatise describes express assumption of risk in the following terms: “In its most basic sense, assumption of risk means that the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone …. The 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, supra, § 68, pp. 480-481, fn. omitted, second italics added.)

Since Li, California cases uniformly have recognized that so long as an express assumption of risk agreement does not violate public policy (see, e.g., Tunkl v. Regents of University of California (1963) 60 Cal.2d 92, 95-101 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]), such an agreement operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action. (See, e.g., Madison v. Superior Court (1988) 203 Cal.App.3d 589, 597-602 [250 Cal.Rptr. 299], and cases cited.)

[*309] Although the difference between the “primary assumption of risk”/”secondary [**704] [***10] assumption of risk” nomenclature and the “reasonable implied assumption of risk”/”unreasonable implied assumption of risk” terminology embraced in many of the recent Court of Appeal decisions may appear at first blush to be only semantic, the significance extends beyond mere rhetoric. First, in “primary assumption of risk” cases–where the defendant owes no duty to protect the plaintiff from a particular risk of harm–a plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff’s conduct in undertaking the activity was reasonable or unreasonable. Second, in “secondary assumption of risk” cases–involving instances in which the defendant has breached the duty of care owed to the plaintiff–the defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff’s conduct in encountering the risk of such an injury was reasonable rather than unreasonable. Third and finally, the question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport. (2) (See fn. 5) For these reasons, use of the “reasonable implied assumption of risk”/”unreasonable implied assumption of risk” terminology, as a means of differentiating between the cases in which a plaintiff is barred from bringing an action and those in which he or she is not barred, is more misleading than helpful. 5

5 In addition to the sports setting, the primary assumption of risk doctrine also comes into play in the category of cases often described as involving the “firefighter’s rule.” (See Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, 437 [218 Cal.Rptr. 256].) In its most classic form, the firefighter’s rule involves the question whether a person who negligently has started a fire is liable for an injury sustained by a firefighter who is summoned to fight the fire; the rule provides that the person who started the fire is not liable under such circumstances. (See, e.g., Walters v. Sloan (1977) 20 Cal.3d 199, 202 [142 Cal.Rptr. 152, 571 P.2d 609].) Although a number of theories have been cited to support this conclusion, the most persuasive explanation is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront. (See, e.g., Baker v. Superior Court (1982) 129 Cal.App.3d 710, 719-721 [181 Cal.Rptr. 311]; Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. 668]. See generally 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 739, pp. 69-70 [discussing rule as one illustration of duty approach]; Anicet v. Gant (Fla.Dist.Ct.App. 1991) 580 So.2d 273, 276 [“a person specifically hired to encounter and combat particular dangers is owed no independent tort duty by those who have created those dangers ….”].) Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier of fact could find it was unreasonable for the firefighter to choose to encounter the risk. This example again demonstrates that primary assumption of risk is not the same as “reasonable implied assumption of risk.”

[*310] (1b) Our reading of Li, supra, 13 Cal.3d 804, insofar as it draws a distinction between assumption of risk cases in which the defendant has not breached any legal duty to the plaintiff and those in which the defendant has breached a legal duty, is supported not only by the language of Li itself and the authorities it cites, but also, and perhaps most significantly, by the fundamental principle that led the Li court to replace the all-or-nothing contributory negligence defense with a comparative fault scheme. In “primary assumption of risk” cases, it is consistent with comparative fault principles totally to bar a plaintiff from pursuing a cause of action, because when the defendant has not breached a legal duty of care to the plaintiff, the defendant has not committed any conduct which would warrant the imposition of any liability whatsoever, and thus there is no occasion at all for invoking comparative fault principles. (See Prosser & Keeton on Torts, supra, § 68, at pp. 496-497.) By contrast, in the “secondary assumption of risk” context, the defendant has breached a duty of care owed to the plaintiff. When a risk of harm is created or imposed by a defendant’s breach of duty, and a plaintiff who chose to encounter the risk is injured, comparative fault principles preclude automatically placing [**705] [***11] all of the loss on the plaintiff, because the injury in such a case may have been caused by the combined effect of the defendant’s and the plaintiff’s culpable conduct. To retain assumption of risk as a complete defense in such a case would fly in the face of Li‘s basic holding that when both parties are partially at fault for an injury, a rule which places all of the loss on one of the parties is inherently inequitable. (See id. at pp. 497-498.)

Thus, just as the court in Li reasoned it would be improper to retain the last clear chance doctrine as a means of imposing all liability on a defendant in cases in which the defendant is aware of the risk of harm created by the plaintiff’s negligence but fails to take the “last clear chance” to avoid the injury ( Li, supra, 13 Cal.3d at p. 824), we believe the Li court similarly recognized that, in the assumption of risk context, it would be improper to [*311] impose all responsibility on a plaintiff who is aware of a risk of harm created by the defendant’s breach of duty but fails to avert the harm. In both instances, comparative fault principles call for a sharing of the burden of liability.

The dissenting opinion suggests, however, that, even when a defendant has breached its duty of care to the plaintiff, a plaintiff who reasonably has chosen to encounter a known risk of harm imposed by such a breach may be totally precluded from recovering any damages, without doing violence to comparative fault principles, on the theory that the plaintiff, by proceeding in the face of a known risk, has “impliedly consented” to any harm. (See dis. opn. by Kennard, J., post, pp. 331-333.) For a number of reasons, we conclude this contention does not withstand analysis.

First, the argument that a plaintiff who proceeds to encounter a known risk has “impliedly consented” to absolve a negligent defendant of liability for any ensuing harm logically would apply as much to a plaintiff who unreasonably has chosen to encounter a known risk, as to a plaintiff who reasonably has chosen to encounter such a risk. As we have seen, however, Li explicitly held that a plaintiff who ” ‘unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence’ ” ( Li, supra, 13 Cal.3d at p. 824) is not completely barred from recovery; instead, the recovery of such a plaintiff simply is reduced under comparative fault principles. Thus, the dissenting opinion’s implied consent argument is irreconcilable with Li itself.

Second, the implied consent rationale rests on a legal fiction that is untenable, at least as applied to conduct that represents a breach of the defendant’s duty of care to the plaintiff. It may be accurate to suggest that an individual who voluntarily engages in a potentially dangerous activity or sport “consents to” or “agrees to assume” the risks inherent in the activity or sport itself, such as the risks posed to a snow skier by moguls on a ski slope or the risks posed to a water skier by wind-whipped waves on a lake. But it is thoroughly unrealistic to suggest that, by engaging in a potentially dangerous activity or sport, an individual consents to (or agrees to excuse) a breach of duty by others that increases the risks inevitably posed by the activity or sport itself, even where the participating individual is aware of the possibility that such misconduct may occur.

A familiar example may help demonstrate this point. Although every driver of an automobile is aware that driving is a potentially hazardous activity and that inherent in the act of driving is the risk that he or she will be injured by the negligent driving of another, a person who voluntarily [*312] chooses to drive does not thereby “impliedly consent” to being injured by the negligence of another, nor has such a person “impliedly excused” others from performing their duty to use due care for the driver’s safety. Instead, the driver reasonably expects that if he or she is injured by another’s negligence, i.e., by the breach of the other person’s duty to use due care, the driver will be entitled to compensation for his or her injuries. Similarly, although a patient who undergoes elective surgery is aware that inherent in such an operation is the risk of injury in the event the surgeon [**706] [***12] is negligent, the patient, by voluntarily encountering such a risk, does not “impliedly consent” to negligently inflicted injury or “impliedly agree” to excuse the surgeon from a normal duty of care, but rather justifiably expects that the surgeon will be liable in the event of medical malpractice.

Thus, there is no merit to the dissenting opinion’s general claim that simply because a person is aware an activity involves a risk of harm that may arise from another’s negligence and voluntarily proceeds to participate in that activity despite such knowledge, that person should be barred from obtaining any recovery on the theory that he or she impliedly consented to the risk of harm. As we shall discuss in part III, legal liability for an injury which occurs during a sporting event is significantly affected by the assumption of risk doctrine, but only because the doctrine has been utilized in framing the duty of care owed by a defendant in the context of a sporting event, and not because the plaintiff in such a case has, in any realistic sense of the term, “consented” to relieve the defendant of liability.

Third, the dissenting opinion’s claim that the category of cases in which the assumption of risk doctrine operates to bar a plaintiff’s cause of action after Li properly should be gauged on the basis of an implied consent analysis, rather than on the duty analysis we have described above, is, in our view, untenable for another reason. In support of its implied consent theory, the dissenting opinion relies on a number of pre-Li cases, which arose in the “secondary assumption of risk” context, and which held that, in such a context, application of the assumption of risk doctrine was dependent on proof that the particular plaintiff subjectively knew, rather than simply should have known, of both the existence and magnitude of the specific risk of harm imposed by the defendant’s negligence. (See Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271- 275; Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161-162.) Consequently, as the dissenting opinion acknowledges, were its implied consent theory to govern application of the assumption of risk doctrine in the sports setting, the basic liability of a defendant who engages in a sport would depend on variable factors that the defendant frequently would have no way of ascertaining (for example, the particular plaintiff’s subjective knowledge and expectations), rather than on [*313] the nature of the sport itself. As a result, there would be drastic disparities in the manner in which the law would treat defendants who engaged in precisely the same conduct, based on the often unknown, subjective expectations of the particular plaintiff who happened to be injured by the defendant’s conduct.

Such an approach not only would be inconsistent with the principles of fairness underlying the Li decision, but also would be inimical to the fair and efficient administration of justice. If the application of the assumption of risk doctrine in a sports setting turned on the particular plaintiff’s subjective knowledge and awareness, summary judgment rarely would be available in such cases, for, as the present case reveals, it frequently will be easy to raise factual questions with regard to a particular plaintiff’s subjective expectations as to the existence and magnitude of the risks the plaintiff voluntarily chose to encounter. (3) By contrast, [HN1] the question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury. (See, e.g., 6 Witkin, Summary of Cal. Law, supra, Torts, § 748, pp. 83-86 and cases cited.) Thus, the question of assumption of risk is much more amenable to resolution by summary judgment under a duty analysis than under the dissenting opinion’s suggested implied consent approach.

(1c) An amicus curiae in the companion case has questioned, on a separate ground, the duty approach to the post-Li assumption of risk doctrine, suggesting that if a plaintiff’s action may go forward whenever a defendant’s breach of duty has played some role, however minor, in a plaintiff’s [**707] [***13] injury, a plaintiff who voluntarily engages in a highly dangerous sport–for example, skydiving or mountain climbing–will escape any responsibility for the injury so long as a jury finds that the plaintiff was not “unreasonable” in engaging in the sport. This argument rests on the premise that, under comparative fault principles, a jury may assign some portion of the responsibility for an injury to a plaintiff only if the jury finds that the plaintiff acted unreasonably, but not if the jury finds that the plaintiff knowingly and voluntarily, but reasonably, chose to engage in a dangerous activity. Amicus curiae contends that such a rule frequently would permit voluntary risk takers to avoid all responsibility for their own actions, and would impose an improper and undue burden on other participants.

Although we agree with the general thesis of amicus curiae’s argument that persons generally should bear personal responsibility for their own actions, the suggestion that a duty approach to the doctrine of assumption of risk is inconsistent with this thesis rests on a mistaken premise. (4) Past [*314] California cases have made it clear that [HN2] the “comparative fault” doctrine is a flexible, commonsense concept, under which a jury properly may consider and evaluate the relative responsibility of various parties for an injury (whether their responsibility for the injury rests on negligence, strict liability, or other theories of responsibility), in order to arrive at an “equitable apportionment or allocation of loss.” (See Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 734-742 [144 Cal.Rptr. 380, 575 P.2d 1162]; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 328-332 [146 Cal.Rptr. 550, 579 P.2d 441]; Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, 804, fn. 7 [251 Cal.Rptr. 202, 760 P.2d 399].)

(1d) Accordingly, contrary to amicus curiae’s assumption, we believe that under California’s comparative fault doctrine, a jury in a “secondary assumption of risk” case would be entitled to take into consideration a plaintiff’s voluntary action in choosing to engage in an unusually risky sport, whether or not the plaintiff’s decision to encounter the risk should be characterized as unreasonable, in determining whether the plaintiff properly should bear some share of responsibility for the injuries he or she suffered. (See, e.g., Kirk v. Washington State University (1987) 109 Wn.2d 448 [746 P.2d 285, 290-291]. See generally Schwartz, Comparative Negligence, supra, § 9.5, p. 180; Diamond, Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. L.J. 717, 748-749.) Thus, [HN3] in a case in which an injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.

It may be helpful at this point to summarize our general conclusions as to the current state of the doctrine of assumption of risk in light of the adoption of comparative fault principles in Li, supra, 13 Cal.3d 804, general conclusions that reflect the view of a majority of the justices of the court (i.e., the three justices who have signed this opinion and Justice Mosk (see conc. and dis. opn. by Mosk, J., post, p. 321)). 6 [HN4] In cases involving “primary assumption of [**708] [***14] risk”–where, by virtue of the nature of the activity and the parties’ [*315] relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury–the doctrine continues to operate as a complete bar to the plaintiff’s recovery. [HN5] In cases involving “secondary assumption of risk”–where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty–the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.

6 Although Justice Mosk agrees that, in this context, a defendant’s liability should be analyzed under a duty analysis, he is of the view that the “primary” and “secondary” assumption of risk terminology is potentially confusing and would prefer entirely to eliminate the doctrine of implied assumption of risk as a bar to recovery and simply to apply comparative fault principles to determine liability. (See conc. and dis. opn. by Mosk, J., post, pp. 321-322.) Because the Li decision, supra, 13 Cal.3d 804, 824-825, indicated that the preexisting assumption of risk doctrine was to be only partially merged into the comparative fault system, the analysis set forth in the present opinion (distinguishing between primary and secondary assumption of risk) in our view more closely reflects the Li holding than does Justice Mosk’s proposal.

Accordingly, in determining the propriety of the trial court’s grant of summary judgment in favor of the defendant in this case, our inquiry does not turn on the reasonableness or unreasonableness of plaintiff’s conduct in choosing to subject herself to the risks of touch football or in continuing to participate in the game after she became aware of defendant’s allegedly rough play. Nor do we focus upon whether there is a factual dispute with regard to whether plaintiff subjectively knew of, and voluntarily chose to encounter, the risk of defendant’s conduct, or impliedly consented to relieve or excuse defendant from any duty of care to her. Instead, our resolution of this issue turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant’s conduct breached a legal duty of care to plaintiff. We now turn to that question.

III

[HN6] As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ. Code, § 1714 .) (5) Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property. (See, e.g., Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].) In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. (6a) Thus, although moguls on a ski run pose a risk of harm to skiers that might not exist were these configurations removed, the challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. (See generally Annot. (1987) 55 A.L.R.4th 632.) In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant.

(7a) [HN7] Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well [*316] established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (6b) Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant. (See generally Annot. (1979) 95 A.L.R.3d 203.)

(7b) In some situations, however, the careless conduct of others is treated as an “inherent risk” of a sport, thus barring recovery by the plaintiff. For example, numerous cases recognize that in a game of baseball, a player generally cannot recover if he or she is hit and injured by a carelessly thrown ball (see, e.g., Mann v. Nutrilite, Inc. (1955) 136 Cal.App.2d 729, 734-735 [289 P.2d 282]), and that in a game of basketball, recovery is not permitted for an injury caused by a carelessly extended elbow (see, e.g., Thomas v. Barlow (1927) 5 N.J. Misc. 764 [138 A. 208]). The divergent results of the foregoing cases lead naturally to the question how courts are to determine when careless conduct of another properly should [***15] be considered an “inherent [**709] risk” of the sport that (as a matter of law) is assumed by the injured participant.

Contrary to the implied consent approach to the doctrine of assumption of risk, discussed above, the duty approach provides an answer which does not depend on the particular plaintiff’s subjective knowledge or appreciation of the potential risk. Even where the plaintiff, who falls while skiing over a mogul, is a total novice and lacks any knowledge of skiing whatsoever, the ski resort would not be liable for his or her injuries. (See Brown v. San Francisco Baseball Club (1950) 99 Cal.App.2d 484, 488- 492 [222 P.2d 19] [baseball spectator’s alleged ignorance of the game did not warrant imposing liability on stadium owner for injury caused by a carelessly thrown ball].) And, on the other hand, even where the plaintiff actually is aware that a particular ski resort on occasion has been negligent in maintaining its towropes, that knowledge would not preclude the skier from recovering if he or she were injured as a result of the resort’s repetition of such deficient conduct. In the latter context, although the plaintiff may have acted with knowledge of the potential negligence, he or she did not consent to such negligent conduct or agree to excuse the resort from liability in the event of such negligence.

Rather than being dependent on the knowledge or consent of the particular plaintiff, resolution of the question of the defendant’s liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to [*317] protect the plaintiff against a particular risk of harm. As already noted, the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant’s role in, or relationship to, the sport.

The latter point is demonstrated by a review of one of the numerous cases involving an injury sustained by a spectator at a baseball game. In Ratcliff v. San Diego Baseball Club (1938) 27 Cal.App.2d 733 [81 P.2d 625], a baseball spectator was injured when, walking in the stands between home plate and first base during a game, she was hit by an accidentally thrown bat. She sued both the player who threw the bat and the baseball stadium owner. The jury returned a verdict in favor of the player, but found the stadium owner liable. On appeal, the Court of Appeal affirmed.

Had the Ratcliff court utilized an implied consent analysis, the court would have looked only to the knowledge of the particular plaintiff (the spectator) to determine whether the risk of being hit by an accidentally thrown bat was an inherent risk of the sport of baseball assumed by the plaintiff, and would have treated the plaintiff’s action against both defendants similarly with regard to such risk. The Ratcliff court did not analyze the case in that manner, however. Instead, the court implicitly recognized that two different potential duties were at issue–(1) the duty of the ballplayer to play the game without carelessly throwing his bat, and (2) the duty of the stadium owner to provide a reasonably safe stadium with regard to the relatively common (but particularly dangerous) hazard of a thrown bat. Because each defendant’s liability rested on a separate duty, there was no inconsistency in the jury verdict absolving the batter of liability but imposing liability on the stadium owner for its failure to provide the patron “protection from flying bats, at least in the area where the greatest danger exists and where such an occurrence is reasonably to be expected.” ( Ratcliff v. San Diego Baseball Club, supra, 27 Cal.App.2d at p. 736.)

Other cases also have analyzed in a similar fashion the duty of the owner of a ballpark or ski resort, in the process defining the risks inherent in the sport not only by virtue of the nature of the sport itself, but also by reference to the steps the sponsoring business entity reasonably should be obligated to take in order to minimize the risks without altering the nature of the sport. (See, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725, 728-729 [discussing separately the potential liability of a player and a baseball stadium owner for injury to a spectator]; [**710] Shurman v. Fresno Ice Rink, supra, 91 Cal.App.2d 469, 474-477 [discussing duty owed by owner of ice hockey rink to spectators].) [*318]

Even a cursory review of the numerous sports injury cases reveals the diverse categories of defendants whose alleged misconduct may be at issue in such cases. Thus, for example, suits have been brought against owners of sports facilities such as baseball stadiums and ski resorts (see, e.g., Quinn v. Recreation Park Assn., supra, 3 Cal.2d 725; Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111 [266 Cal.Rptr. 749]), against manufacturers and reconditioners of sporting equipment (see, e.g., Holdsworth v. Nash Mfg., Inc. (1987) 161 Mich.App. 139 [409 N.W.2d 764]; Gentile v. MacGregor Mfg. Co. (1985) 201 N.J.Super. 612 [493 A.2d 647]), against sports instructors and coaches (see, e.g., Scroggs v. Coast Community College Dist. (1987) 193 Cal.App.3d 1399 [239 Cal.Rptr. 916]; Morris v. Union High School Dist. A (1931) 160 Wash. 121 [294 P. 998]), and against coparticipants (see, e.g., [**716] Tavernier v. Maes (1966) 242 Cal.App.2d 532 [51 Cal.Rptr. 575]), alleging that such persons, either by affirmative misconduct or by a failure to act, caused or contributed to the plaintiff’s injuries. These cases demonstrate that in the sports setting, as elsewhere, the nature of the applicable duty or standard of care frequently varies with the role of the defendant whose conduct is at issue in a given case.

In the present case, defendant was a participant in the touch football game in which plaintiff was engaged at the time of her injury, and thus the question before us involves the circumstances under which a participant in such a sport may be held liable for an injury sustained by another participant.

(8a) The overwhelming majority of the cases, both within and outside California, that have addressed the issue of coparticipant liability in such a sport, have concluded that [HN8] it is improper to hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport–for example, for an injury resulting from a carelessly thrown ball or bat during a baseball game–and that liability properly may be imposed on a participant only when he or she intentionally injures another player or engages in reckless conduct that is totally outside the range of the ordinary activity involved in the sport. (See, e.g., Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94, 96-97] and cases cited.)

In reaching the conclusion that a coparticipant’s duty of care should be limited in this fashion, the cases have explained that, in the heat of an active sporting event like baseball or football, a participant’s normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant’s conduct violates a rule of the game and [*319] may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.

A sampling of the cases that have dealt with the question of the potential tort liability of such sports participants is instructive. In Tavernier v. Maes, supra, 242 Cal.App.2d 532, for example, the Court of Appeal upheld a verdict denying recovery for an injury sustained by the plaintiff second baseman as an unintended consequence of the defendant baserunner’s hard slide into second base during a family picnic softball game. Similarly, in Gaspard v. Grain Dealers Mutual Insurance Company (La.Ct.App. 1961) 131 So.2d 831, the plaintiff baseball player was denied recovery when he was struck on the head by a bat which accidentally flew out of the hands of the defendant batter during a school game. (See also Gauvin v. Clark, supra, 404 Mass. 450 [537 N.E.2d 94, 96-97] [plaintiff hockey player injured when hit [**711] [***17] with hockey stick by opposing player; court held that defendant’s liability should be determined by whether he acted “with reckless disregard of safety”]; Marchetti v. Kalish (1990) 53 Ohio.St.3d 95 [559 N.E.2d 699, 703] [child injured while playing “kick the can”; “we join the weight of authority … and require that before a party may proceed with a cause of action involving injury resulting from recreational or sports activity, reckless or intentional conduct must exist”]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290, 294] [plaintiff injured in informal tackle football game; court held that “a cause of action for personal injuries between participants incurred during athletic competition must be predicated upon recklessness or intentional conduct, ‘not mere negligence’ “]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11, 13-14 [plaintiff third baseman injured in collision with baserunner; court held that “a cause of action for personal injuries incurred during athletic competition must be predicated on recklessness, not mere negligence”]; Moe v. Steenberg (1966) 275 Minn. 448 [147 N.W.2d 587, 33 A.L.R.3d 311] [plaintiff ice skater denied recovery for injury incurred when another skater, who was skating backwards, accidentally tripped over her after she had fallen on the ice]; Thomas v. Barlow, supra, 5 N.J. Misc. 764 [138 A. 208] [recovery denied when appellate court concluded that plaintiff’s injury, incurred during a basketball game, resulted from an accidental contact with a member of the opposing team].)

By contrast, in Griggas v. Clauson (1955) 6 Ill.App.2d 412 [128 N.E.2d 363], the court upheld liability imposed on the defendant basketball player who, during a game, wantonly assaulted a player on the opposing team, apparently out of frustration with the progress of the game. And, in Bourque v. Duplechin (La.Ct.App. 1976) 331 So.2d 40, the court affirmed a judgment [*320] imposing liability for an injury incurred during a baseball game when the defendant baserunner, in an ostensible attempt to break up a double play, ran into the plaintiff second baseman at full speed, without sliding, after the second baseman had thrown the ball to first base and was standing four to five feet away from second base toward the pitcher’s mound; in upholding the judgment, the court stated that defendant “was under a duty to play softball in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players.” (Id. at p. 42.) (See also Averill v. Luttrell (1957) 44 Tenn.App. 56 [311 S.W.2d 812] [defendant baseball catcher properly held liable when, deliberately and without warning, he hit a batter in the head with his fist]; Hackbart v. Cincinnati Bengals, Inc. (10th Cir. 1979) 601 F.2d 516 [trial court erred in absolving defendant football player of liability when, acting out of anger and frustration, he struck a blow with his forearm to the back of the head of an opposing player, who was kneeling on the ground watching the end of a pass interception play]; Overall v. Kadella (1984) 138 Mich.App. 351 [361 N.W.2d 352] [hockey player permitted to recover when defendant player intentionally punched him in the face at the conclusion of the game].)

In our view, the reasoning of the foregoing cases is sound. Accordingly, we conclude that a participant in an active sport breaches a legal duty of care to other participants–i.e., engages in conduct that properly may subject him or her to financial liability–only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. 7

7 As suggested by the cases described in the text, the limited duty of care applicable to coparticipants has been applied in situations involving a wide variety of active sports, ranging from baseball to ice hockey and skating. Because the touch football game at issue in this case clearly falls within the rationale of this rule, we 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. We note that because of the special danger to others posed by the sport of hunting, past cases generally have found the ordinary duty of care to be applicable to hunting accidents. (See, e.g., Summers v. Tice (1948) 33 Cal.2d 80, 83 [199 P.2d 1, 5 A.L.R.2d 91].)

(9a) As applied to the present case, the foregoing legal principle clearly supports [**712] [***18] the trial court’s entry of summary judgment in favor of defendant. The declarations filed in support of and in opposition to the summary judgment motion establish that defendant was, at most, careless or negligent in knocking over plaintiff, stepping on her hand, and injuring her finger. Although plaintiff maintains that defendant’s rough play as described in her declaration and the declaration of Andrea Starr properly can be characterized as “reckless,” the conduct alleged in those declarations is not even closely comparable to the kind of conduct–conduct so reckless as to be totally [*321] outside the range of the ordinary activity involved in the sport–that is a prerequisite to the imposition of legal liability upon a participant in such a sport.

Therefore, we conclude that defendant’s conduct in the course of the touch football game did not breach any legal duty of care owed to plaintiff. Accordingly, this case falls within the primary assumption of risk doctrine, and thus the trial court properly granted summary judgment in favor of defendant. Because plaintiff’s action is barred under the primary assumption of risk doctrine, comparative fault principles do not come into play.

The judgment of the Court of Appeal, upholding the summary judgment entered by the trial court, is affirmed.

Lucas, C. J., and Arabian, J., concurred.

DISSENT BY: MOSK, J., PANELLI, J.,

DISSENT

Concurring and Dissenting.

(1e)

(8b)

(9b)

Because I agreed with the substance of the majority opinion in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (see id. at p. 830), I concur generally with Justice George’s analysis as set forth in part II of the lead opinion. And like the lead opinion, I conclude that the liability of sports participants should be limited to those cases in which their misconduct falls outside the range of the ordinary activity involved the sport. As part I of the lead opinion explains, the kind of overexuberant conduct that is alleged here was not of that nature. I therefore agree that defendant was entitled to summary judgment, for the reasons set forth in part III of the lead opinion.

But I would go farther than does the lead opinion. Though the opinion’s interpretation of Li v. Yellow Cab Co. (supra, 13 Cal.3d 804) is reasonable, I believe the time has come to eliminate implied assumption of risk entirely. The all-or- nothing aspect of assumption of risk is as anachronistic as the all-or- nothing aspect of contributory negligence. As commentators have pointed out, the elements of assumption of risk “are accounted for already in the negligence prima facie case and existing comparative fault defense.” (Wildman & Barker, Time to Abolish Implied Assumption of a Reasonable Risk in California (1991) 25 U.S.F. L.Rev. 647, 679.) Plaintiffs’ behavior can be analyzed under comparative fault principles; no separate defense is needed. (See ) Wildman and Barker explain cogently that numerous California cases invoke both a duty analysis–which I prefer–and an unnecessary implied assumption of risk analysis in deciding a defendant’s liability. (See id. at p. 657 & fn. 58.) In the case before us, too, the invocation of assumption of risk is superfluous: far better to limit the [*322] analysis to concluding that a participant owes no duty to avoid conduct of the type ordinarily involved in the sport.

Were we to eliminate the doctrine of assumption of risk, we would put an end to the doctrinal confusion that now surrounds apportionment of fault in such cases. Assumption of risk now stands for so many different legal concepts that its utility has diminished. A great deal of the confusion surrounding the concept “stems from the fact that the term ‘assumption of risk’ has several different meanings and is often applied without recognizing these different meanings.” ( Rini v. Oaklawn Jockey Club (8th Cir. 1988) 861 F.2d 502, 504-505.) Courts vainly attempt to analyze conduct in such esoteric terms as primary assumption of risk, secondary assumption of risk, reasonable implied assumption of risk, unreasonable implied assumption of risk, etc. Since courts have difficulty in assessing [**713] [***19] facts under the rubric of such abstruse distinctions, it is unlikely that juries can comprehend such distinctions.

Justice Frankfurter explained in a slightly different context, “The phrase ‘assumption of risk’ is an excellent illustration of the extent to which uncritical use of words bedevils the law. A phrase begins life as a literary expression; its felicity leads to its lazy repetition; and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas.” ( Tiller v. Atlantic Coast Line R. Co. (1943) 318 U.S. 54, 68 [87 L.Ed. 610, 618, 63 S.Ct. 444, 143 A.L.R. 967] (conc. opn. of Frankfurter, J.).) Thus the Rini court, in attempting to determine the viability of assumption of risk in light of the Arkansas comparative fault law, was forced to identify “four types of assumption of risk ….” ( Rini v. Oaklawn Jockey Club, supra, 861 F.2d at p. 505.) These included “implied secondary reasonable assumption of risk” and “implied secondary unreasonable assumption of risk.” (Id. at p. 506.)

I would eliminate the confusion that continued reliance on implied assumption of risk appears to cause, and would simply apply comparative fault principles to determine liability.

Concurring and Dissenting.

I concur in the majority opinion solely with respect to the result reached. The majority correctly affirms the judgment of the Court of Appeal, which upheld the summary judgment entered by the trial court. I dissent, however, from the reasoning of the majority opinion. Instead, I reach a like result by adopting and applying the “consent-based” analysis set forth in the dissenting opinion by Justice Kennard. While I subscribe to the analysis of the dissenting opinion with respect to the doctrine of implied assumption of the risk, I am not in accord [*323] with how it would dispose of this case. I believe that defendant met the burden of demonstrating that plaintiff assumed the risk of injury by her participation in the touch football game.

As the dissenting opinion explains: “To establish the defense [of implied assumption of the risk], a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. (Prescott v. Ralphs Grocery Co. [(1954)] 42 Cal.2d 158, 161 [265 P.2d 904].)” (Dis. opn., post, p. 326.) As the dissenting opinion further explains: “A defendant need not prove, however, that the plaintiff ‘had the prescience to foresee the exact accident and injury which in fact occurred.’ ( Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61 [88 Cal.Rptr. 704].)” (Ibid.)

There is no question that plaintiff voluntarily chose to play touch football. 1 The undisputed facts in this case also show that plaintiff knew of and accepted the risks associated with the game. Plaintiff was an avid football fan. She had participated in games of touch football in the past. She was aware of the fact that in touch football players try to deflect the ball from receiving players. Plaintiff admitted that the players in the game in question could expect to receive “bumps” and “bruises.” These facts indicate that plaintiff knew and appreciated that physical injury resulting from contact, such as being knocked to the ground, was possible when playing touch football. Defendant was not required to prove more, such as that plaintiff knew or appreciated that a “serious injury” or her particular injury could result from the expected physical contact.

1 Plaintiff points to her request to the defendant during the game to temper his roughness to demonstrate that she did not assume the risk of being injured. She claims that defendant “seemed to acknowledge [her] statement” and “left [her] with the impression that he would play less rough.” Plaintiff’s reported request to defendant does not defeat summary judgment. She continued to play the game. As demonstrated below, she knew that physical contact and resulting injury could occur during a touch football game.

To support the conclusion that summary judgment be reversed under the consent-based approach, the dissenting opinion stresses the broad range of activities that [**714] [***20] can be part of a “touch football game” and that few rules were delineated for the particular game in which plaintiff was injured. I find these facts to be irrelevant to the question at hand. The risk of physical contact and the possibility of resulting injury is inherent in the game of football, no matter who is playing the game or how it is played. While the players who participated in the game in question may have wanted a “mellow” and “noncompetitive” game, such expectations do not alter the fact that anyone who has observed or played any form of football understands that it is a contact sport and that physical injury can result from such physical contact.

[*324] The undisputed facts of this case amply support awarding defendant summary judgment based upon plaintiff’s implied assumption of the risk. I, therefore, concur in affirming the judgment of the Court of Appeal.

Baxter, J., concurred.

KENNARD, J.

I disagree with the plurality opinion both in its decision to affirm summary judgment for defendant and in its analytic approach to the defense of assumption of risk.

We granted review in this case and its companion, Ford v. Gouin (post, p. 339 [11 Cal.Rptr.2d 30, 834 P.2d 724]), to resolve a lopsided conflict in the Courts of Appeal on whether our adoption 17 years ago of a system of comparative fault in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [119 Cal.Rptr. 858, 532 P.2d 1226, 78 A.L.R.3d 393] (hereafter Li) necessarily abolished the affirmative defense of implied assumption of risk. 1 When confronted with this issue, the overwhelming majority of appellate courts in this state have held that, except to the extent it was subsumed within the former doctrine of contributory negligence this court abolished in Li, implied assumption of risk continues as a complete defense. I would so hold in this case, adhering to the traditional analysis of implied assumption of risk established by a long line of California cases, both before and after Li.

1 Of the several Court of Appeal decisions that considered this issue, only one concluded that our adoption in Li of a system of comparative fault necessarily abolished the traditional defense of assumption of risk.

Not content with deciding the straightforward issue before us–whether the defense of implied assumption of risk survived Li–the plurality opinion uses this case as a forum to advocate a radical transformation of tort law. The plurality proposes to recast the analysis of implied assumption of risk from a subjective evaluation of what a particular plaintiff knew and appreciated about the encountered risk into a determination of the presence or absence of duty legally imposed on the defendant. By thus transforming an affirmative defense into an element of the plaintiff’s negligence action, the plurality would abolish the defense without acknowledging that it is doing so.

The plurality opinion also announces a rule that those who engage in active sports do not owe coparticipants the usual duty of care–as measured by the standard of a reasonable person in like or similar circumstances–to avoid inflicting physical injury. According to the plurality, a sports participant has no duty to avoid conduct inherent in a particular sport. Although I agree that in organized sports contests played under well-established rules participants have no duty to avoid the very conduct that constitutes the sport, [*325] I cannot accept the plurality’s nearly boundless expansion of this general principle to eliminate altogether the “reasonable person” standard as the measure of duty actually owed between sports participants.

The ultimate question posed by this case is whether the trial court properly granted summary judgment for defendant. Deriving the facts from the evidence that the parties presented to the trial court on defendant’s motion for summary judgment, and relying on well-established summary judgment principles, I conclude that defendant is not entitled to summary judgment. In reaching a contrary conclusion, the plurality mischaracterizes the nature of the athletic contest during which plaintiff incurred [**715] [***21] her injury. The evidence reveals that rather than an organized match with well-defined rules, it was an impromptu and informal game among casual acquaintances who entertained divergent views about how it would be played. This inconclusive record simply does not permit a pretrial determination that plaintiff knew and appreciated the risks she faced or that her injury resulted from a risk inherent in the game.

I

To explain my conclusion that implied assumption of risk survives as an affirmative defense under the system of comparative fault this court adopted in Li in 1975, I first summarize the main features of the defense as established by decisions published before Li.

In California, the affirmative defense of assumption of risk has traditionally been defined as the voluntary acceptance of a specific, known and appreciated risk that is or may have been caused or contributed to by the negligence of another. ( Prescott v. Ralphs Grocery Co. (1954) 42 Cal.2d 158, 162 [265 P.2d 904]; see Hayes v. Richfield Oil Corp. (1952) 38 Cal.2d 375, 384-385 [240 P.2d 580].) Assumption of risk may be proved either by the plaintiff’s spoken or written words (express assumption of risk), or by inference from the plaintiff’s conduct (implied assumption of risk). Whether the plaintiff knew and appreciated the specific risk, and voluntarily chose to encounter it, has generally been a jury question. (See 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 1110, p. 523.)

The defense of assumption of risk, whether the risk is assumed expressly or by implication, is based on consent. ( Vierra v. Fifth Avenue Rental Service (1963) 60 Cal.2d 266, 271 [32 Cal.Rptr. 193, 383 P.2d 777]; see Prosser & Keeton, Torts (5th ed. 1984) § 68, p. 484.) Thus, in both the express and implied forms, the defense is a specific application of the maxim that one “who consents to an act is not wronged by it.” ( Civ. Code, § 3515.) This [*326] consent, we have explained, “will negative liability” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161; see also Gyerman v. United States Lines Co. (1972) 7 Cal.3d 488, 498, fn. 10 [102 Cal.Rptr. 795, 498 P.2d 1043] [“In assumption of the risk the negligent party’s liability is negated ….”]), and thus provides a complete defense to an action for negligence.

The elements of implied assumption of risk deserve some explanation. To establish the defense, a defendant must prove that the plaintiff voluntarily accepted a risk with knowledge and appreciation of that risk. ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161.) The normal risks inherent in everyday life, such as the chance that one who uses a public highway will be injured by the negligence of another motorist, are not subject to the defense, however, because they are general rather than specific risks. (See Hook v. Point Montara Fire Protection Dist. (1963) 213 Cal.App.2d 96, 101 [28 Cal.Rptr. 560].)

The defense of implied assumption of risk depends on the plaintiff’s “actual knowledge of the specific danger involved.” ( Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 274.) Thus, one who “knew of the general danger in riding in a bucket of the mine owner’s aerial tramway, did not assume the risk, of which he had no specific knowledge, that the traction cable was improperly spliced.” (Id. at p. 272, italics added, referring to Bee v. Tungstar Corp. (1944) 65 Cal.App.2d 729, 733 [151 P.2d 537]; see also Carr v. Pacific Tel. Co. (1972) 26 Cal.App.3d 537, 542-543 [103 Cal.Rptr. 120].) A defendant need not prove, however, that the plaintiff “had the clairvoyance to foresee the exact accident and injury which in fact occurred.” ( Sperling v. Hatch (1970) 10 Cal.App.3d 54, 61 [88 Cal.Rptr. 704].) “Where 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 ….” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d at 162.) Indeed, certain well-known risks of harm may be within the general “common knowledge. [***22] ” ( Tavernier v. Maes (1966) 242 Cal.App.2d 532, 546 [51 Cal.Rptr. 575].)

As set forth earlier, a person’s assumption of risk must be voluntary. “The plaintiff’s acceptance of a risk is not voluntary if the defendant’s tortious conduct has left him [or her] no reasonable alternative course of conduct in order to [P] (a) avert harm to himself [or herself] or another, or [P] (b) exercise or protect a right or privilege of which the defendant has no right to deprive him [or her].” ( Rest.2d Torts, § 496E, subd. (2); see also Curran v. Green Hills Country Club (1972) 24 Cal.App.3d 501, 505-506 [101 Cal.Rptr. 158].) [*327]

This requirement of voluntariness precludes assertion of the defense of assumption of risk by a defendant who has negligently caused injury to another through conduct that violates certain safety statutes or ordinances such as those designed to protect a class of persons unable to provide for their own safety for reasons of inequality of bargaining power or lack of knowledge. (See Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409, 430-431 [218 P.2d 17] [violation of fire- safety ordinance]; Fonseca v. County of Orange (1972) 28 Cal.App.3d 361, 366, 368 [104 Cal.Rptr. 566] [violation of safety order requiring scaffolding and railings at bridge construction site]; see also Mason v. Case (1963) 220 Cal.App.2d 170, 177 [33 Cal.Rptr. 710].) Thus, a worker who, to avoid loss of livelihood, continues to work in the face of safety violations does not thereby assume the risk of injury as a result of those violations. (See, e.g., Lab. Code, § 2801; Fonseca v. County of Orange, supra, 28 Cal.App.3d 361.) In such cases, the implied agreement upon which the defense is based is contrary to public policy and therefore unenforceable.

Our 1975 decision in Li, supra, 13 Cal.3d 804, marked a fundamental change in California law governing tort liability based on negligence. Before Li, a person’s own lack of due care for his or her safety, known as contributory negligence, completely barred that person from recovering damages for injuries inflicted by the negligent conduct of another. In Li, we held that a lack of care for one’s own safety would no longer entirely bar recovery, and that juries thereafter should compare the fault or negligence of the plaintiff with that of the defendant to apportion loss between the two. (Id. at pp. 828-829.)

Before it was abolished by Li, supra, 13 Cal.3d 804, the defense of contributory negligence was sometimes confused with the defense of implied assumption of risk. Although this court had acknowledged that the two defenses may “arise from the same set of facts and frequently overlap” ( Vierra v. Fifth Avenue Rental Service, supra, 60 Cal.2d 266, 271), we had emphasized that they were nonetheless “essentially different” (Ibid.) because they were “based on different theories” ( Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158, 161). Contributory negligence was premised on a lack of due care or, stated another way, a departure from the reasonable person standard, whereas implied assumption of risk has always depended on a voluntary acceptance of a risk with knowledge and appreciation of that risk. (Id. at pp. 161-162; Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878 [142 Cal.Rptr. 503].)

The standards for evaluating a plaintiff’s conduct under the two defenses were entirely different. Under contributory negligence, the plaintiff’s conduct was measured against the objective standard of a hypothetical reasonable person. ( Gonzalez v. Garcia, supra, 75 Cal.App.3d 874, 879.) Implied [*328] assumption of risk, in contrast, has always depended upon the plaintiff’s subjective mental state; the relevant inquiry is whether the plaintiff actually knew, appreciated, and voluntarily consented to assume a specific risk of injury. ( Grey v. Fibreboard Paper Products Co. (1966) 65 Cal.2d 240, 243-245 [53 Cal.Rptr. 545, 418 P.2d 153].)

We said in Li, albeit in dictum, that our adoption of a system of comparative fault would to some extent necessarily impact [**717] [***23] the defense of implied assumption of risk. ( Li, supra, 13 Cal.3d 804, 826.) We explained: “As for assumption of risk, we have recognized in this state that this defense overlaps that of contributory negligence to some extent and in fact is made up of at least two distinct defenses. ‘To simplify greatly, it has been observed … that in one kind of situation, to wit, where a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant’s negligence, plaintiff’s conduct, although he [or she] 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 [or her]. 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.” ( Li, supra, 13 Cal.3d 804, 824-825, original italics.)

Although our adoption in Li of a system of comparative fault eliminated contributory negligence as a separate defense, it did not alter the basic attributes of the implied assumption of risk defense or call into question its theoretical foundations, as we affirmed in several cases decided after Li. For example, in Walters v. Sloan (1977) 20 Cal.3d 199 [142 Cal.Rptr. 152, 571 P.2d 609], we said that “one who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby.” (At p. 204; see also Ewing v. Cloverleaf Bowl (1978) 20 Cal.3d 389, 406 [143 Cal.Rptr. 13, 572 P.2d 1155] [acknowledging the continued viability of the assumption of risk defense after the adoption of comparative fault].) Thereafter, in Lipson v. Superior Court (1982) 31 Cal.3d 362 [182 Cal.Rptr. 629, 644 P.2d 822], we reiterated that “the defense of assumption of risk arises when the plaintiff voluntarily undertakes to encounter a specific known risk imposed by defendant’s conduct.” (At p. 375, fn. 8.)

The Courts of Appeal directly addressed this issue in several cases, which were decided after Li, supra, 13 Cal.3d 804, and which considered whether, [*329] and to what extent, implied assumption of risk as a complete defense survived our adoption in Li of a system of comparative fault. The first of these cases was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162 [191 Cal.Rptr. 578] (hereafter Segoviano).

In Segoviano, the plaintiff was injured during a flag football game when an opposing player pushed him to the ground as the plaintiff was running along the sidelines trying to score a touchdown. Although the jury found that the opposing player was negligent, and that this negligence was a legal cause of the plaintiff’s injury, it also found that the plaintiff’s participation in the game was a negligent act that contributed to the injury. Applying the instructions it had been given on comparative negligence, the jury apportioned fault for the injury between the two players and reduced the plaintiff’s award in accord with that apportionment. (143 Cal.App.3d at p. 166.)

To determine whether the jury had acted properly in making a comparative fault apportionment, the Segoviano court began its analysis by distinguishing those cases in which the plaintiff’s decision to encounter a known risk was “unreasonable” from those in which it was “reasonable.” ( Segoviano, supra, 143 Cal.App.3d 162, 164.) In so doing, Segoviano relied on this court’s language in Li, which I have quoted on page 328, ante, that a plaintiff’s conduct in “unreasonably” undertaking to encounter a specific known risk was “a form of contributory negligence” that would be merged “into the general scheme of assessment of liability in proportion to [***24] [**718] fault.” ( Li, supra, 13 Cal.3d 804, 824-825.)

The Segoviano court defined an “unreasonable” decision to encounter a known risk as one that “falls below the standard of care which a person of ordinary prudence would exercise to avoid injury to himself or herself under the circumstances.” ( Segoviano, supra, 143 Cal.App.3d 162, 175, citing Rest.2d Torts, § 463.) The Segoviano court cited a person’s voluntary choice to ride with a drunk driver as an example of an “unreasonable” decision. (Id. at p. 175; see Gonzalez v. Garcia, supra, 75 Cal.App.3d 874, 881; Paula v. Gagnon (1978) 81 Cal.App.3d 680, 685 [146 Cal.Rptr. 702].) Because an “unreasonable” decision to risk injury is neglect for one’s own safety, the Segoviano court observed, a jury can appropriately compare the negligent plaintiff’s fault with that of the negligent defendant and apportion responsibility for the injury, applying comparative fault principles to determine the extent of the defendant’s liability. ( Segoviano, supra, at pp. 164, 170.)

By contrast, the plaintiff’s decision to play flag football was, in the Segoviano court’s view, an example of a “reasonable” decision to encounter a known risk of injury. Although the risk of being injured during a flag [*330] football game could be avoided altogether by choosing not to play, this did not render the plaintiff’s decision to play “unreasonable.” ( Segoviano, supra, 143 Cal.App.3d 162, 175.) Rather, the court said, a person who participates in a game of flag football is not negligent in doing so, because the choice does not fall below the standard of care that a person of ordinary prudence would exercise to avoid being injured. The Segoviano court concluded that such cases, in which there is no negligence of the plaintiff to compare with the negligence of the defendant, cannot be resolved by comparative fault apportionment of the plaintiff’s damages. (Id. at pp. 174-175.)

The Segoviano court next considered whether the defense of implied assumption of risk, to the extent it had not merged into comparative fault, continued to provide a complete defense to an action for negligence following our decision in Li (supra, 13 Cal.3d 804). The court asked, in other words, whether a plaintiff’s voluntary and nonnegligent decision to encounter a specific known risk was still a complete bar to recovery, or no bar at all.

In resolving this issue, the court found persuasive a commentator’s suggestion that ” ‘it would be whimsical to treat one who has unreasonably assumed the risk more favorably … than one who reasonably assumed the risk ….’ ” ( Segoviano, supra, 143 Cal.App.3d 162, 169, quoting Fleming, The Supreme Court of California 1974-1975, Forward: Comparative Negligence at Last–By Judicial Choice (1976) 64 Cal.L.Rev. 239, 262.) To avoid this “whimsical” result, in which “unreasonable” plaintiffs were allowed partial recovery by way of a comparative fault apportionment while “reasonable” plaintiffs were entirely barred from recovery of damages, the Segoviano court concluded that our decision in Li, supra, 13 Cal.3d 804, must mean that the defense of implied assumption of risk had been abolished in all those instances in which it had not merged into the system of comparative fault, and that only express assumption of risk survived as a complete defense to an action for negligence. ( Segoviano, supra, 143 Cal.App.3d 162, 169-170.) The Segoviano court thus held that the defense of implied assumption of risk “plays no part in the comparative negligence system of California.” (Id. at p. 164.) Various Court of Appeal decisions soon challenged this holding of Segoviano.

One decision characterized Segoviano‘s analysis as “suspect.” ( Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, fn. 4 [202 Cal.Rptr. 900].) Another case disregarded it entirely in reaching a contrary result ( Nelson v. Hall (1985) 165 Cal.App.3d 709, 714 [211 Cal.Rptr. [***25] 668] [**719] [“Where assumption of the risk is not merely a form of contributory negligence,” it remains “a complete defense.”]; accord, Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183 [229 Cal.Rptr. 612]; Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 186-187 [229 Cal.Rptr. [*331] 625]). And in Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104 [243 Cal.Rptr. 536] (hereafter Ordway), the court rejected Segoviano outright, holding instead that “reasonable” implied assumption of risk continued as a complete defense under the newly adopted system of comparative fault.

The Court of Appeal that decided Ordway, supra, interpreted Li‘s reference to a form of assumption of risk under which ” ‘plaintiff is held to agree to relieve defendant of an obligation of reasonable conduct toward him [or her]’ ” ( Li, supra, 13 Cal.3d at p. 824) as describing a doctrine that the Ordway court termed “reasonable” implied assumption of risk. This doctrine, the Ordway court concluded, was unaffected by Li‘s adoption of a system of comparative negligence and remained a complete defense after Li. ( Ordway, supra, 198 Cal.App.3d 98, 103-104.) According to Ordway, a plaintiff who voluntarily and reasonably assumes a risk, “whether for recreational enjoyment, economic reward, or some similar purpose,” is deemed thereby to have agreed to reduce the defendant’s duty of care and “cannot prevail.” (Id. at p. 104.)

After concluding that the defense of implied assumption of risk remained viable after this court’s decision in Li, supra, 13 Cal.3d 804, the Ordway court discussed the preclusive impact of the defense on the facts of the case before it. Ordway involved a negligence action brought by a professional jockey who had been injured in a horse race when another jockey, violating a rule of the California Horse Racing Board, crossed into the plaintiff’s lane. The court first noted that professional jockeys must be aware that injury-causing accidents are both possible and common in horse racing, as in other sports activities. ( Ordway, supra, 198 Cal.App.3d 98, 111.) The court observed that although the degree of risk to be anticipated would vary with the particular sport involved, a plaintiff may not recover from a coparticipant for a sports injury if the coparticipant’s injury-causing actions fell within the ordinary expectations of those engaged in the sport. (Id. at pp. 111-112.) On this basis, the Ordway court held that the plaintiff jockey’s action was barred.

Other decisions by the Courts of Appeal that have addressed implied assumption of risk have followed Ordway, supra, 198 Cal.App.3d 98. ( Nunez v. R’Bibo (1989) 211 Cal.App.3d 559, 562- 563 [260 Cal.Rptr. 1]; Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 1477-1478 [255 Cal.Rptr. 755]; King v. Magnolia Homeowners Assn. (1988) 205 Cal.App.3d 1312, 1316 [253 Cal.Rptr. 140].) In my view, Ordway was correct in its conclusions that the defense of implied assumption of risk survived this court’s adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault, and that the defense remains a complete bar to recovery in negligence cases in which the plaintiff has knowingly and voluntarily consented to encounter a specific risk. [*332]

Ordway was also correct in its observation that the terms “unreasonable” and “reasonable” are confusing when used to distinguish the form of implied assumption of risk that has merged into the system of comparative fault from the form that has not so merged. As Ordway suggested, the reasonable/unreasonable labels would be more easily understood by substituting the terms “knowing and intelligent,” for “reasonable,” and “negligent or careless” for “unreasonable.” ( Ordway, supra, 198 Cal.App.3d 98, 105.)

The defense of implied assumption of risk is never based on the “reasonableness” of the plaintiff’s conduct, as such, but rather on a recognition that a person generally should be required to accept responsibility for the normal consequences of a freely chosen course of conduct. (See Simons, [**720] [***26] Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference (1987) 67 B.U. L.Rev. 213, 258 [“consent is neither reasonable nor unreasonable[;] [i]t simply expresses what plaintiff wants or prefers”].) In implied assumption of risk situations, the plaintiff’s conduct often defies legal characterization as either reasonable or unreasonable. Even when this is not so, and a court or jury could appropriately determine whether the plaintiff’s conduct was reasonable, the distinction to be drawn is not so much between reasonable and unreasonable conduct. Rather, the essential distinction is between conduct that is deliberate and conduct that is merely careless. Referring to “reasonable” implied assumption of risk lends unwarranted credence to the charge that the law is “whimsical” in treating unreasonable behavior more favorably than behavior that is reasonable. There is nothing arbitrary or whimsical in requiring plaintiffs to accept responsibility for the consequences of their considered and deliberate choices, while at the same time apportioning liability between a plaintiff and a defendant who have both exhibited carelessness.

In those cases that have merged into comparative fault, partial recovery is permitted, not because the plaintiff has acted unreasonably, but because the unreasonableness of the plaintiff’s apparent choice provides compelling evidence that the plaintiff was merely careless and could not have truly appreciated and voluntarily consented to the risk, or because enforcement of the implied agreement on which the defense is based would be contrary to sound public policy. In these cases, implied assumption of risk is simply not available as a defense, although comparative negligence may be.

In those cases in which a plaintiff’s decision to encounter a specific known risk was not the result of carelessness (that is, when the plaintiff’s conduct is not merely a form of contributory negligence), nothing in this court’s adoption in Li (supra, 13 Cal.3d 804) of a system of comparative fault suggests that implied assumption of risk must or should be eliminated [*333] as a complete defense to an action for negligence. I would hold, therefore, that the defense continues to exist in such situations unaffected by this court’s adoption in Li of a comparative fault system.

II

The plurality opinion approaches the viability of implied assumption of risk after Li, supra, 13 Cal.3d 804, in a fashion altogether different from the traditional consent analysis I have described. It begins by conceding that Li effected only a partial merger of the assumption of risk defense into the system of comparative fault. It then concludes, with no foundational support in California law, that the actual effect of this partial merger was to bifurcate implied assumption of risk into two subcategories that the plurality calls “primary” and “secondary” assumption of risk.

The plurality’s “secondary assumption of risk” category includes those situations in which assumption of risk is merely a variant of contributory negligence. In those situations, under the plurality approach, implied assumption of risk merges into comparative fault; a trial court presented with a “secondary” case would therefore instruct the jury only on the principles of damage apportionment based on comparative fault, but not on implied assumption of risk as a separate and complete defense. Thus, implied assumption of risk does not survive as a separate and complete defense in these “secondary” cases.

Under the plurality’s approach, implied assumption of risk fares no better in the “primary assumption of risk” cases. That category includes only those cases in which the defendant owes no duty to the plaintiff. Without duty, of course, there is no basis for a negligence action and thus no need for an affirmative defense to negligence. Consequently, implied assumption of risk ceases to operate as an affirmative defense in these “primary” cases.

The plurality purports to interpret Li, supra, 13 Cal.3d 804, but instead works a sleight-of-hand switch on the assumption of risk defense. [**721] [***27] In those situations in which implied assumption of risk does not merge into comparative fault, the plurality recasts what has always been a question of the plaintiff’s implied consent into a question of the defendant’s duty. This fundamental alteration of well-established tort principles was not preordained by Li nor was it a logical evolution of California law either before or after this court’s decision in Li. Seizing on Li‘s statement that a plaintiff who assumes the risk thereby reduces a defendant’s duty of care, the plurality concludes that defendants had no duty of care in the first place. The plurality presents its analysis as merely an integration of the defense of implied [*334] assumption of risk into the system of comparative fault, but this “integration” is in truth a complete abolition of a defense that California courts have adhered to for more than 50 years. I see no need or justification for this drastic revision of California law.

III

On a motion for summary judgment, a defendant can establish implied assumption of risk as a complete defense to negligence by submitting uncontroverted evidence that the plaintiff sustained the injury while engaged in voluntarily chosen activity under circumstances showing that the plaintiff knew or must have known that the specific risks of the chosen activity included the injury suffered. (See Code Civ. Proc., § 437c, subds. (a), (c), (f); Garcia v. Rockwell Internat. Corp. (1986) 187 Cal.App.3d 1556, 1560 [142 Cal.Rptr. 503]; Fireman’s Fund Ins. Co. v. City of Turlock (1985) 170 Cal.App.3d 988, 994 [216 Cal.Rptr. 796].) In this case, the trial court entered summary judgment for defendant, ruling that the evidence supporting the motion established assumption of risk under the traditional consent analysis.

The undisputed, material facts are as follows: Plaintiff, defendant, and six or eight other guests gathered at the home of a mutual friend to watch a television broadcast of the 1987 Super Bowl football game. During the game’s half time, the group went to an adjacent dirt lot for an informal game of touch football. The participants divided into two teams, each including men as well as women. They used a child’s soft, “peewee-size” football for the game. The players expected the game to be “mellow” and “noncompetitive,” without any “forceful pushing, hard hitting or hard shoving.”

Plaintiff and defendant were on opposing teams. Plaintiff was an avid fan of televised professional football, but she had played touch football only rarely and never with this particular group. When defendant ran into her early in the game, plaintiff objected, stating that he was playing too roughly and if he continued, she would not play. Plaintiff stated in her declaration that defendant “seemed to acknowledge [her] statement” and “left [her] with the impression that he would play less rough.” On the very next play, defendant knocked plaintiff down and inflicted the injury for which she seeks recovery.

We have held that summary judgment “is a drastic measure” that should “be used with caution.” ( Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46].) On appeal from a summary judgment, well-settled rules dictate that the moving party’s evidence supporting the motion be strictly construed and that doubts about granting the motion be [*335] resolved in favor of the party that opposed the motion. (Ibid.) Applying those rules here, I conclude that defendant has not established implied assumption of risk as a complete defense to plaintiff’s action for negligence.

Notably missing from the undisputed facts is any evidence that plaintiff either knew or must have known that by participating in this particular game she would be engaging in a sport that would subject players to being knocked to the ground. She had played touch football only rarely, never with these players, and just before her injury had expressly told defendant that her participation in the touch football game was conditioned on him not being so rough. Moreover, the game was not even a regular game of touch football. When deposed, defendant conceded that this [**722] [***28] touch football game was highly unusual because the teams consisted of both men and women and the players used a child’s peewee ball. He agreed that the game was not “regulation football,” but was more of a “mock” football game.

“Touch football” is less the name of a game than it is a generic description that encompasses a broad spectrum of activity. At one end of the spectrum is the “traditional” aggressive sandlot game, in which the risk of being knocked down and injured should be immediately apparent to even the most casual observer. At the other end is the game that a parent gently plays with young children, really little more than a game of catch. Here, defendant may prevail on his summary judgment motion only if the undisputed facts show that plaintiff knew this to be the type of game that involved a risk of being knocked to the ground. As explained above, such knowledge by the plaintiff was not established. Accordingly, the trial court erred in granting summary judgment for defendant on the ground that plaintiff had assumed the risk of injury.

IV

To uphold the grant of summary judgment for defendant, the plurality relies on a form of analysis virtually without precedent in this state. As an offshoot of its advocacy of the primary/secondary approach to implied assumption of risk, the plurality endorses a categorical rule under which coparticipants in active sports have no duty to avoid conduct “inherent” in the sport, and thus no liability for injuries resulting from such conduct. Applying the rule to the facts shown here, the plurality concludes that plaintiff’s injury resulted from a risk “inherent” in the sport she played and that defendant owed her no duty to avoid the conduct that caused this injury.

Generally, a person is under a legal duty to use ordinary care, measured by the conduct of a hypothetical reasonable person in like or similar circumstances, to avoid injury to others. ( Civ. Code, § 1714, subd. (a).) Judicially [*336] fashioned exceptions to this general duty rule must be clearly supported by public policy. ( Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1079 [9 Cal.Rptr.2d 615, 831 P.2d 1197].) The plurality’s no-duty-for-sports rule is such a judicially fashioned exception to the general duty rule. Under the plurality’s rule, a sports participant’s conduct is not evaluated by the “reasonable person” standard. Rather, the player is exempted from negligence liability for all injuries resulting from conduct that is “inherent” in the sport.

The plurality’s no-duty-for-sports rule derives from cases in a few jurisdictions concluding that a participant’s liability for injuries to a coparticipant during competitive sports must be based on reckless or intentional conduct. (See Gauvin v. Clark (1989) 404 Mass. 450 [537 N.E.2d 94]; Kabella v. Bouschelle (1983) 100 N.M. 461 [672 P.2d 290]; Ross v. Clouser (Mo. 1982) 637 S.W.2d 11; Nabozny v. Barnhill (1975) 31 Ill.App.3d 212 [334 N.E.2d 258, 77 A.L.R.3d 1294].) Although these courts have chosen to explain the rule in terms of the absence of duty, the consent analysis of implied assumption of risk would provide an equally satisfactory explanation. (See Ordway, supra, 198 Cal.App.3d 98, 110-112.) The reason no duty exists in these competitive sports situations is that, as the Massachusetts Supreme Court has explained in Gauvin, each participant has a right to infer that the others have agreed to undergo a type of physical contact that would otherwise constitute assault and battery. 2 ( Gauvin v. Clark, supra, 537 N.E.2d at p. 96.) Without some reference to mutual consent or implied agreement among coparticipants, the no-duty-for-sports rule would be difficult to explain and justify. Thus, the rationale of the rule, even in no-duty garb, is harmonious with the traditional logic of implied assumption of risk.

2 In adopting a rule of no duty for organized competitive sports, the Massachusetts court candidly acknowledged that legislative abolition of the assumption of risk defense had forced it to shift the focus of analysis from the plaintiff’s knowing confrontation of risk to the scope of the defendant’s duty of care. ( Gauvin v. Clark, supra, 537 N.E.2d at p. 97, fn. 5.)

[**723] [***29] Although there is nothing inherently wrong with the plurality’s no-duty rule as applied to organized, competitive, contact sports with well- established modes of play, it should not be extended to other, more casual sports activities, such as the informal “mock” football game shown by the evidence in this case. Outside the context of organized and well-defined sports, the policy basis for the duty limitation–that the law should permit and encourage vigorous athletic competition ( Gauvin v. Clark, supra, 537 N.E.2d at p. 96)–is considerably weakened or entirely absent. Thus, the no-duty-for-sports rule logically applies only to organized sports contests played under well-settled, official rules ( Gauvin v. Clark, supra, 537 N.E.2d 94 [college varsity hockey game]; Ross v. Clouser, supra, 637 S.W.2d 11 [church league softball game]; Nabozny v. Barnhill, supra, 334 N.E.2d 258 [organized, [*337] amateur soccer game]), or on unequivocal evidence that the sport as played involved the kind of physical contact that generally could be expected to result in injury ( Kabella v. Bouschelle, supra, 670 P.2d 290).

The plurality may believe that its no-duty rule for sports participants will facilitate early resolution of personal injury actions by demurrer or motions for summary judgment and thus provide relief to overburdened trial courts by eliminating the need for jury trials in many of these cases. But the plurality fails to explain just how trial courts will be able to discern, at an early stage in the proceedings, which risks are inherent in a given sport.

Under the plurality’s no-duty-for-sports rule, a sports participant is exempted from negligence liability for all injuries resulting from conduct that is within “the range of ordinary activity involved in the sport.” (Plur. opn., ante, at p. 320.) Under this approach, as the plurality acknowledges, “the nature of a defendant’s duty in the sports context depends heavily on the nature of the sport itself.” (Id., ante, at p. 317.)

The issue framed by the plurality’s no-duty approach can be decided on demurrer only if the plaintiff has alleged in the complaint that the injury resulted from a risk inherent in an injury-causing sport, something careful pleaders are unlikely to do. And because summary judgment depends on uncontroverted material facts, early adjudication of the duty issue by summary judgment is equally doubtful. In cases involving all but the most well-known professional sports, plaintiffs will usually be able to counter defense evidence seeking to establish what risks are inherent in the sport. Cases that cannot be resolved by demurrer or summary judgment will, under the plurality’s approach, proceed to trial solely under comparative fault, leaving the jury no opportunity to decide whether the plaintiff made a knowing and voluntary decision to assume the risk.

The plurality’s resolution of this case amply illustrates the difficulty of attempting to decide the question of duty by motion for summary judgment. To sustain summary judgment under the plurality’s approach, the defendant must have conclusively negated the element of duty necessary to the plaintiff’s negligence case. ( Molko v. Holy Spirit Assn., supra, 46 Cal.3d 1092, 1107.) Therefore, under the plurality approach, defendant here is entitled to summary judgment only if he negated the element of duty by presenting undisputed evidence showing that his injury-causing conduct was within the range of activity ordinarily involved in the sport he was then playing.

But what is “the range of the ordinary activity” involved in touch football? As I have previously explained, the generic term “touch football” encompasses such a broad range of activity that it is difficult to conceive of an [*338] “ordinary” game. Even if such a game could be identified, defendant offered no evidence in support of his motion for summary judgment to show that players are knocked to the ground in the “ordinary” game. In the absence of uncontroverted evidence on this material fact, defendant was not entitled to summary judgment.

[**724] [***30] As mentioned earlier, defendant admitted at his deposition that this was not a “regulation football” game, and that it was more of a “mock” game because it was played by both men and women using a child’s peewee ball. Given the spontaneous and irregular form of the game, it is not surprising that the participants demonstrated uncertainty about the bounds of appropriate conduct. One participant, asked at deposition whether defendant had done anything “out of the normal,” touched the nub of the problem by replying with this query: “Who’s [sic; whose] normal? My normal?”

Defendant did not present uncontroverted evidence that his own rough level of play was “inherent” in or normal to the particular game being played. In the view of one of the players, defendant was playing “considerably rougher than was necessary.” Other players described defendant as a fast runner and thought he might have been playing too hard. Absent uncontroverted evidence that defendant’s aggressive style of play was appropriate, there is no basis for the plurality’s conclusion that his injury-causing conduct in knocking plaintiff to the ground was within the range of ordinary and acceptable behavior for the ill-defined sports activity in which plaintiff was injured.

Defendant did not meet his burden to establish by undisputed evidence a legal entitlement to summary judgment. The record fails to support summary judgment under either the traditional consent approach to the defense of assumption of risk or the plurality’s no-duty approach. Thus, the trial court erred in granting defendant’s motion for summary judgment, and the Court of Appeal erred in affirming that judgment. I would reverse.