WILKIE CHEONG, Plaintiff and Appellant, v. DREW R. ANTABLIN, Defendant and Respondent, 16 Cal. 4th 1063

Opinion CHIN, J. Two friends went skiing together. One collided with the other, inflicting injury. We must decide whether the injured skier has a valid action in tort against the uninjured skier. The issue’s resolution requires us to revisit the questions of duty and assumption of risk in a sports setting we considered in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724, 34 A.L.R.5th 769] (Ford) and to consider a Placer County ordinance relating to skier responsibility.

We conclude that, under the applicable common law principles, a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence, and we further conclude that the ordinance at issue in this case does not alter this rule. As there is no evidence the defendant skier intentionally injured plaintiff or acted recklessly, the trial court correctly granted

summary judgment in his favor. We affirm the judgment of the Court of Appeal, which reached the same conclusion. I. Facts and Procedural History The relevant facts are largely undisputed. On April 11, 1991, plaintiff Wilkie Cheong and defendant Drew R. Antablin, longtime friends and experienced skiers, skied together at Alpine Meadows, a resort near Tahoe City in Placer County. They collided, injuring plaintiff. Defendant’s declaration states, “I was skiing faster than I was comfortable with, in that I felt I was skiing too fast for existing conditions.

In reaction, I turned to my right in an effort to slow down, regain control and stop. As I did so, we collided.” Defendant denied intentionally colliding with plaintiff or acting recklessly. In his deposition, plaintiff conceded he did not believe defendant acted recklessly. Plaintiff sued defendant for general negligence. The superior court granted defendant’s motion for

summary judgment. The court found that a collision “is an inherent risk of downhill skiing.” It stated that under the analysis of Knight, supra, 3 Cal.4th 296, “this is a case of ‘primary’ assumption of risk, which is an absolute bar to plaintiff’s recovery.” Citing Ford, supra, 3 Cal.4th 339, it also found that a Placer County ordinance placing a duty on skiers “to ski in a safe and reasonable manner” did not give plaintiff a valid cause of action.

Turning to the undisputed facts, the court found that the accident involved “an active sport, i.e., skiing[,] and the conduct of defendant was neither one of intentionally causing injury nor of conduct so reckless so as to be totally outside the range of ordinary activity involved in the sport.” Plaintiff appealed. He argued that he and defendant were not coparticipants in the sport within the meaning of Knight and Ford, and that the local ordinance imposed on defendant a duty that abrogated the assumption of risk defense. The Court of Appeal affirmed. Citing O’Donoghue v.

Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188, 193 [35 Cal.Rptr.2d 467], and Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 123 [266 Cal.Rptr. 749], the court first found that “Collision with other skiers is considered an inherent risk of the sport.” Relying heavily on Staten v. Superior Court (1996) 45 Cal.App.4th 1628 [53 Cal.Rptr.2d 657], it also found that the assumption of risk doctrine applies to an individual sport such as skiing.

Without reference to the local ordinance, it concluded: “Recreational skiing includes certain risky activities, such as avoiding trees and lift towers, negotiating moguls, and avoiding collisions with other skiers. Part of the allure of recreational skiing includes the camaraderie and socializing involved in riding up the lifts and skiing down the mountain runs or trails with friends in mutual enjoyment of nature and of the physical activity and skill required for the sport.

We conclude that [plaintiff] and [defendant] . . . were coparticipants in the sport as contemplated by Knight. [Defendant] did not act so recklessly as to bring him outside the bounds of the sports activity, and accordingly the defense of primary assumption of the risk operates to bar [plaintiff’s] action.” The Court of Appeal also concluded that the local “ordinance did not impose a duty of care upon skiers irrespective of Knight v. Jewett.” We granted plaintiff’s petition to review the issue of the ordinance’s effect. II.

Discussion In Knight, supra, 3 Cal.4th 296, the plaintiff sued for injuries the defendant inflicted on her during an informal touch football game. We considered how the adoption of comparative negligence 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] affected the doctrine of assumption of risk in a sports setting.

Only three justices signed the plurality opinion in Knight, but Justice Mosk wrote a concurring opinion generally agreeing with its analysis. (Knight, supra, 3 Cal.4th at pp. 321-322 (conc. opn. of Mosk, J.).) More recently, we unanimously restated the basic principles of Knight's lead opinion as the controlling law. (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538, 541 [34 Cal.Rptr.2d 630, 882 P.2d 347]; see also Parsons v.

Crown Disposal Co. (1997) 15 Cal.4th 456, 479-481 [63 Cal.Rptr.2d 291, 936 P.2d 70].) We distinguished between (1) primary assumption of risk—“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"—and (2) secondary assumption of risk—“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." (Knight, supra, 3 Cal.4th at p. 308.) Primary assumption of risk, when applicable, completely bars the plaintiff’s recovery. (Id. at pp. 314-315.) The doctrine of secondary assumption of risk, by contrast, “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.” (Id. at p. 315.) Whether primary or secondary assumption of risk applies “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.” (Ibid.) The test is objective; it “depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity” rather than “the particular plaintiff’s subjective knowledge and awareness ....’’ (Id. at p. 313.) We noted that “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.)” (Knight, supra, 3 Cal.4th at p. 315.) This general rule, however, does not apply to coparticipants in a sport, where “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself. ...

In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant. [*]fl Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, . . . 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. . . .

FjD In some situations, however, the careless conduct of others is treated as an ‘inherent risk’ of a sport, thus barring recovery by the plaintiff." (Id. at pp. 315-316.) Courts should not “hold a sports participant liable to a coparticipant for ordinary careless conduct committed during the sport” because “in the heat of an active sporting event. . . , a participant’s normal energetic conduct often includes accidentally careless behavior. . . . [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.” (Id. at p. 318.) For these reasons, the general test is “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.” (Knight, supra, 3 Cal.4th at p. 320, fn. omitted.) Applying this test, the trial court and the Court of Appeal concluded that primary assumption of risk bars this action.

Plaintiff’s petition for review presented the question whether a Placer County ordinance changes the test.

In 1984, the Placer County Board of Supervisors enacted the Skier Responsibility Code of Placer County (Placer Code). (Placer Code, § 12.130 et seq.) It provides in part: “Any individual or group of individuals who engage in the sport of skiing of any type, . . . shall assume and accept the inherent risks of such activities insofar as the risks are reasonably obvious, foreseeable or necessary to the activities.” (Placer Code, § 12.132.) “ ‘Inherent risks of skiing’ ” expressly include “collision with other skiers and a skier’s failure to ski within the skier’s own ability.” (Placer Code, § 12.131(a).) Plaintiff obviously does not rely on this part of the Placer Code, which seems consistent with Knight.

Rather, he cites other sections, which state “skier duties.” Placer Code

section 12.134 provides, as relevant: “Skiers shall have the following duties, a violation of which shall constitute an infraction: ['JQ 1. It shall be unlawful for any person to ski faster than is safe and it shall be the duty of all skiers to ski in a safe and reasonable manner, under sufficient control to be able to stop or avoid other skiers or objects.” Placer Code

section 12.135 provides, as relevant: “Skiers shall have the following duties: [1 ... [1 3. Skiers shall not overtake any other skier except in such a manner as to avoid contact with the overtaken skier, and shall grant the right of way to the overtaken skier.” Plaintiff argues that the ordinance imposes a higher duty on defendant than Knight establishes. We disagree. We recognize that Knight was a development of the common law of torts. Within constitutional limits, the Legislature may, if it chooses, modify the common law by statute. (E.g., Strang v.

Cabrol (1984) 37 Cal.3d 720, 724 [209 Cal.Rptr. 347, 691 P.2d 1013] [legislation abrogating prior tort decisions of this court]; Cory v. Shierloh (1981) 29 Cal.3d 430, 439 [174 Cal.Rptr. 500, 629 P.2d 8] [“It is well settled that the Legislature possesses a broad authority both to establish and to abolish tort causes of action.”].) Whether a local ordinance such as the Placer Code can modify Knight is less clear. We need not decide this question here because we conclude that the ordinance does not modify the Knight standard even if we assume it could.

The ordinance evinces no clear intent to modify common law assumption of risk principles. It does state various “skier duties," but in context these duties do not govern tort liability between skiers.

Rather than stating a skier may sue a fellow skier for violating the specified duties, the ordinance expressly provides that a skier “shall assume and accept the inherent risks of such activities insofar as the risks are reasonably obvious, foreseeable or necessary to the activities” (Placer Code, § 12.132), and it defines these inherent risks to include “collision with other skiers and a skier’s failure to ski within the skier’s own ability.” (Placer Code, § 12.131(a).) The ordinance was adopted in 1984, several years before we decided Knight, supra, 3 Cal.4th 296, but it preserves common law principles of assumption of risk.

Plaintiff argues the assumption of risk provisions of the Placer Code were intended to protect ski area operators, and not skiers, from liability for injuries due to negligent skiing. Nothing in the language of the ordinance, however, limits the scope of those provisions in this fashion. The language that skiers assume the risks inherent in skiing, including the risk of collision, is unqualified. It provides no basis on which to limit its application only to ski area operators, or to assume an intent to modify the common law rules of assumption of the risk.

Accordingly, we conclude the ordinance, by itself, does not give plaintiff a cause of action. Plaintiff also argues that Evidence Code

section 669, subdivision (a) (section 669(a)), provides him a cause of action.

Section 669(

a) states: “The failure of a person to exercise due care is presumed if: “

(1) He violated a statute, ordinance, or regulation of a public entity; “

(2) The violation proximately caused death or injury to person or property; “

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and “

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.” Citing the four elements of

section 669(a), plaintiff contends (1) defendant violated an ordinance, specifically the Placer Code; (2) the violation caused his injury; (3) the ordinance was designed to prevent his injury; and (4) he was one of the class the ordinance was intended to protect.

Relying heavily on Ford, supra, 3 Cal.4th 339, he argues “that if a plaintiff who is a participant in an active sport is also a member of the class of persons intended to be protected by a statute, then Evidence Code § 669 will in turn transform the statute into a legal duty of due care upon the defendant, thus abrogating the assumption of the risk defense.” In Ford, the plaintiff was injured when he struck a tree limb extending from a riverbank in a channel of the Sacramento River Delta while water-skiing barefoot and backward. He sued the driver of the boat that towed him. Harbors and Navigation Code

section 658, subdivision (d), prohibits ski boat drivers from operating a boat so as to cause a skier to collide with an object. (See Ford, supra, 3 Cal.4th at p. 346.) The plaintiff argued the defendant had violated that statute, and, “under the provisions of Evidence Code

section 669, such a violation establishes a rebuttable presumption that defendant breached his duty of care to plaintiff." (Ibid.) This court disagreed. The lead opinion, speaking for one justice, concluded Harbors and Navigation Code “section 658, subdivision (d), was intended to safeguard only the lives and property of third persons. Plaintiff does not fall within this protected class. (Evid.

Code, § 669.) Accordingly, the statute does not impose a duty of care on defendant that is otherwise precluded under the principles set forth in Knight, supra, ante, at page 296.” (Ford, supra, 3 Cal.4th at p. 350 (opn. of Arabian, J.).) Justice Kennard, joined by Justices Panelli and Baxter, also concluded that the statute “does not preclude application of the assumption of risk defense in this case,” but for different reasons based upon her dissenting opinion in Knight. (Ford, supra, 3 Cal.4th at p. 363.) Then Associate Justice George, joined by Chief Justice Lucas, and, in a separate opinion, Justice Mosk, concluded that Harbors and Navigation Code

section 658 did impose a higher duty on the defendant than Knight otherwise would have, and therefore the trial court should not have granted

summary judgment in favor of the defendant. (Knight, supra, 3 Cal.4th at pp. 364-369 (conc. & dis. opn. of George, J.), 369 (dis. opn. of Mosk, J.).) Justice Arabian’s opinion in Ford implicitly assumed, and the opinions of Justice George, joined by Chief Justice Lucas, and Justice Mosk expressly concluded, that if the four elements of

section 669(

a) were satisfied, that statute creates tort liability between coparticipants in an active sport despite the Knight doctrine of primary assumption of risk. As the concurring opinion that I have filed in this case indicates, a number of the justices who have signed this majority opinion question whether this conclusion is correct. We need not resolve the point here, however, because, even if that conclusion is correct, the elements of

section 669(

a) have not been met in this case. Plaintiff has not demonstrated that he is one of the class of persons the ordinance was intended to protect. By specifically stating that skiers assume the inherent risks of skiing, including the risk of collision and the risk that others will fail to ski within their own ability, the ordinance makes clear that petitioner, who was injured in a collision with a fellow skier, was not “one of the class of persons for whose protection the . . . ordinance . . . was adopted.” (§ 669(a).) Accordingly

section 669(

a) does not aid plaintiff’s position. “By eliminating liability for unintended accidents, the doctrine [of primary assumption of the risk] ensures that the fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop.” (Stimson v. Carlson (1992) 11 Cal.App.4th 1201, 1206 [14 Cal.Rptr.2d 670].) These words apply fully to skiing. The Placer Code itself incorporated the doctrine of assumption of risk. Even if defendant’s misstep in this case violated that code, the violation would not create tort liability between skiers. III.

Conclusion The judgment of the Court of Appeal is affirmed. George, C. J., Baxter, J., Werdegar, J., and Brown, J., concurred.