[275 Cal.Rptr. 293] [232 Cal.App.3d 1146] [3 Cal.App.4th 1026] Steven H. Wilhelm, San Diego, for plaintiff and appellant.

Daley & Heft, Sarah H. Mason and Dennis W. Daley, Solana Beach, for defendant and respondent.

TODD, Acting Presiding Justice.

Kendra Knight appeals a summary judgment granted in favor of Michael Jewett in her lawsuit against Jewett for negligence and assault and battery stemming from a touch football game in which she was injured. Knight contends (1) it was error to apply the doctrine of assumption of risk to defeat the negligence cause of action, (2) it was error to apply the doctrine of assumption of risk to defeat the assault and battery cause of action and (3) there were triable issues of fact that should have precluded the granting of summary judgment.

FACTS

On January 25, 1987, Knight and several other individuals, including Jewett, gathered at the Vista home of Ed McDaniels to observe the Super Bowl football game. Knight and Jewett were among those who decided to play a game of co-ed touch football during half-time using a "peewee" football often used by children. Apparently, no explicit rules were written down or discussed before the game, other than the requirement that to stop advancement of the player with the ball it was necessary to touch that player above the waist with two hands. Knight and Jewett were on different teams.

Previously, Knight had played touch football and frequently watched football on television. Knight voluntarily participated in the Super Bowl half-time game. It was her understanding that this game would not involve forceful pushing, hard hitting or hard shoving during the game. She had never observed anyone being injured in a touch football game before this incident.

About five to ten minutes after the game started, Jewett ran into Knight during a play and afterward Knight asked Jewett not to play so rough. Otherwise, she told him, she would stop playing.

[232 Cal.App.3d 1147] [3 Cal.App.4th 1027] On the next play, Knight suffered her injuries, when she was knocked down by Jewett and he stepped on the little finger of her right hand. Kendra had three surgeries on the finger, but they proved unsuccessful. The finger was amputated during a fourth surgery.

According to Jewett, he had jumped up to intercept a pass and as he came down he knocked Knight over. When he landed, he stepped back and onto Knight's hand.

According to Knight's version, her teammate, Andrea Starr had caught the ball and was proceeding up the field. Knight was headed in the same direction, when Jewett, [275 Cal.Rptr. 294] in pursuit of Starr, came from behind Knight and knocked her down. Knight put her arms out to break the fall and Jewett ran over her, stepping on her hand. Jewett continued to pursue Starr for another 10 to 15 feet before catching up with her and tagging her. Starr said the tag was rough enough to cause her to lose her balance and fall and twist her ankle.

Jewett did not intend to step on Knight's hand and did not intend to hurt her.

DISCUSSION

I

Knight contends it was error to apply the doctrine of assumption of risk to the facts of this case and negate her cause of action for negligence. We disagree.

It is fundamental that a plaintiff in a negligence action can prevail only if he or she establishes the defendant owed the plaintiff a duty to use reasonable care and breached that duty. (6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 732, p. 60.) The doctrine of assumption of the risk is "another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily--and reasonably--assumed the risk cannot prevail." (Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 104, 243 Cal.Rptr. 536.)

We begin with a short history of California cases which have explored the defense of assumption of the risk after our Supreme Court handed down its decision in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808, 119 Cal.Rptr. [232 Cal.App.3d 1148] [3 Cal.App.4th 1028] 858, 532 P.2d 1226, abolishing the defense of contributory negligence and replacing it with a system of comparative negligence. Li raised considerable doubt as to the survival of assumption of the risk as a tort defense, except for express contractual assumption. (See, e.g., Schwartz, Comparative Negligence (2d ed. 1986) § 9.1, p. 156.)

The first reported post-Li case in this area was Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162, 191 Cal.Rptr. 578, in which the plaintiff was injured during a flag football game. In Segoviano, the Fifth Appellate District concluded that reasonable implied assumption of the risk had been abolished by Li:

"We interpret Li to mean that the separate defense of implied assumption of the risk is abolished under the comparative negligence law. It is only when the plaintiff expressly agrees to assume the risk that the defendant is relieved of a duty of care toward the plaintiff, thus barring any recovery. In our view, this is the only rational meaning to be given to the principles articulated in Li. The Supreme Court recognized that implied assumption of risk if unreasonable could be fairly handled under the comparative negligence concept, i.e., the plaintiff's recovery would be reduced to the extent his own lack of reasonable care contributed to his injury. If the plaintiff's conduct was entirely reasonable under all of the circumstances, we find no basis in reason or equity for barring his recovery." (Id. at pp. 169-170, 191 Cal.Rptr. 578.)

The position of the court in Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, has found little support in subsequent cases.^[1] The Third Division of our appellate district issued the first of these cases, Rudnick v. Golden West Broadcasters (1984) 156 Cal.App.3d 793, 800, footnote 4, 202 Cal.Rptr. 900, in which the lead opinion, in dictum, affirmed the continued viability of an assumption of the risk defense and questioned the reasoning of Segoviano. Rudnick involved injury to a spectator at a baseball game at Anaheim Stadium, and one of the interposed defenses was assumption of risk. The appellate court did not reach this issue because it concluded summary judgment had been improvidently [275 Cal.Rptr. 295] granted on the basis of an insufficient declaration.

In Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668, a case involving injuries to a veterinary assistant, the Third Appellate District held the defense of assumption of the risk was applicable even though the claim was based upon strict liability under the dog-bite statute. The Nelson court said a veterinarian or his assistant is aware dogs may bite during treatment and "has assumed this risk as part of his or her occupation." (Id. at p. 715, 211 Cal.Rptr. 668.)

[232 Cal.App.3d 1149] [3 Cal.App.4th 1029] In Neinstein v. Los Angeles Dodgers, Inc. (1986) 185 Cal.App.3d 176, 183, 229 Cal.Rptr. 612, a Second Appellate District case, the court said Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, did not abrogate the doctrine of implied reasonable assumption of the risk. In Neinstein, the plaintiff had occupied a seat in an unscreened area of Dodger Stadium and was struck by a batted ball. The appellate court upheld the granting of summary judgment in favor of the Dodgers, noting the plaintiff consented to take her own chances that she would not be injured when she voluntarily elected to sit in the unscreened area and "was sufficiently warned of the risk by common knowledge of the nature of the sport...." (Neinstein, supra, 185 Cal.App.3d at p. 184, 229 Cal.Rptr. 612.)

The definitive statement of the law of "reasonable implied assumption of the risk" is contained in Ordway v. Superior Court, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, another decision by the Third Division of this appellate district. Ordway involved injuries suffered by a professional jockey during a race when other jockeys "crossed over" without sufficient clearance. The Ordway court, in a comprehensive review of the subject, compared (a) express assumption of the risk, (b) unreasonable implied assumption of the risk, and (c) reasonable assumption of the risk, and concluded Li, supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, had merged only unreasonable implied assumption of the risk into the comparative negligence doctrine. Rejecting Segoviano, supra, 143 Cal.App.3d 162, 191 Cal.Rptr. 578, the Ordway court held that reasonable implied assumption of risk remained, after Li, a complete defense. (Ordway v. Superior Court, supra, 198 Cal.App.3d at pp. 102-105, 243 Cal.Rptr. 536.)^[2]

We join the clear California trend in adopting the Ordway analysis and conclusion that--notwithstanding the adoption of comparative negligence--reasonable implied assumption of risk remains a viable defense. We conclude the doctrine of reasonable implied assumption of risk is a logical allocation of risk among those who have impliedly agreed in advance. "Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger." (Ordway, supra, 198 Cal.App.3d at p. 102, 243 Cal.Rptr. 536, original italics.) In other words, it is the undertaking of a risk which a reasonable person would assume, with knowledge of all the circumstances. As Dean Prosser explained:

"[W]here the plaintiff voluntarily enters into some relation with the defendant, with knowledge that the defendant will not protect him against one or more future risks that may arise from the relation ... [h]e may then be regarded as tacitly or impliedly consenting to the negligence, and agreeing to take his own chances." (Prosser & Keeton, op. cit. supra, § 68, p. 481, emphasis in original.)

[232 Cal.App.3d 1150] [3 Cal.App.4th 1030] The question remains whether application of the defense was proper here. Here, Knight was familiar with football and voluntarily joined a group of men and women to play a game of touch football. It is axiomatic that those who engage in or follow competitive sports know physical contact causing injuries is routinely caused by both the acts of adversaries and of [275 Cal.Rptr. 296] collaborators by reason of the very nature of the activity in which all participate. As an avid television watcher of Monday night professional football and sometime touch football player, Knight had to have been aware of the fact that contact is an inherent part of the game of football--even a social game of touch football. Though in her experience of playing touch football no one had previously been injured, Knight said in her deposition she was aware of the fact that in touch football people generally try to block the ball from the receiving player.

"If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants--such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing--no cause of action can succeed based on a resulting injury." (Ordway, supra, 198 Cal.App.3d at pp. 111-112, 243 Cal.Rptr. 536, fn. omitted.)

When she voluntarily played in the game, Knight assumed a risk of physical contacts within the ordinary parameters of a game of touch football--and the dangers inherent in such contacts. Thus, her assumption of the risk of contact injury bars her negligence cause of action.

Knight's argument that implied reasonable assumption of risk was inapplicable because Jewett's conduct was outside the reasonable expectations of the participants is not persuasive. For one thing, the failure to set down explicit rules before the game started indicates the participants did not attempt to delineate the level of permissible force or aggressiveness or roughness for the game. Moreover, in the context of sports, it is always unrealistic to expect a narrow range of conduct among the participants. Knight makes much of the fact that on a previous play, she asked Jewett to play less roughly. However, we find the fact that Knight continued to play after she learned that Jewett was playing at a level of aggressiveness and roughness that was not to her liking tends to show that she indeed had voluntarily and knowingly assumed the risks of this particular touch football game when she was injured.^[3]

[232 Cal.App.3d 1151] [3 Cal.App.4th 1031] II

Knight contends that even if we find the doctrine of implied reasonable assumption of the risk to be applicable here, summary judgment was inappropriate because there were questions of fact to be determined. The contention is without merit.

Code of Civil Procedure section 437c, subdivision (c), provides, in part, that "the motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Italics added.) The California Supreme Court has stated that:

"The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue.... Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the trial judge hearing the motion sufficient to present a triable issue." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785.)

In reviewing an order granting summary judgment, "the appellate court has the duty to determine whether a triable issue of material fact exists." (Estate of Pitzer (1984) 155 Cal.App.3d 979, 986, 202 Cal.Rptr. 855.)

[275 Cal.Rptr. 297] Here, the parties dispute how the injury occurred: Jewett claims he collided with Knight as he was trying to intercept a pass, while Knight claims Jewett ran into her from behind as he was pursuing the ball carrier. While this is a factual dispute, it is immaterial to the issue of assumption of risk. Knight also posits there is a factual dispute about whether she had knowledge of the risk involved in this game because she did not appreciate the magnitude of the danger presented by Jewett's over-exuberant or aggressive level of play. This argument begs the question. The issue is whether the defendant's conduct is within the ordinary expectations of the participants in the particular sport. (Ordway, supra, 198 Cal.App.3d at p. 111, 243 Cal.Rptr. 536.) It cannot be disputed that Knight knew a touch football game entails physical contact. As discussed in part I of this opinion, Knight cannot claim Jewett's aggressive play transformed this game into something more than it was, namely a game of touch football, and negated her assumption of the risk that she might incur incidental physical injury when she voluntarily agreed to participate.

"[T]he purpose of a summary judgment 'is to expedite litigation by avoiding needless trials'...." (Burton v. Security Pacific Nat. Bank [232 Cal.App.3d 1152] (1988) 197 Cal.App.3d 972, 977, 243 Cal.Rptr. 277.) Therefore, "[i]f there are no triable issues, summary judgment is appropriate." (Ibid.) Here, we conclude [3 Cal.App.4th 1032] there are no material issues of fact on the negligence cause of action. The defense of implied reasonable assumption of the risk acts as a legal bar to this cause of action. A summary judgment motion should be granted if the moving party is entitled to judgment as a matter of law. (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134, 211 Cal.Rptr. 356, 695 P.2d 653.)^[4]

III

Knight contends her cause of action for assault and battery is viable and she should be allowed to proceed to trial on it.

Somehow Knight infers from the trial court's summary judgment order that it applied the assumption of the risk doctrine to bar the assault and battery doctrine as well. We agree it would be error to apply assumption of the risk, a negligence doctrine, to assault and battery, which is an intentional tort. (Ordway, supra, 198 Cal.App.3d at p. 108, 243 Cal.Rptr. 536.) However, we find no evidence the trial court applied assumption of the risk to the assault and battery cause of action. Jewett's moving papers^[5] below did not argue assumption of the risk as a defense to the assault and battery cause of action. Rather, with respect to this cause of action, Jewett argued it must fail because Knight consented to the physical contact.^[6]

[232 Cal.App.3d 1153] [275 Cal.Rptr. 298] [3 Cal.App.4th 1033] Consent is a viable defense to the tort of assault and battery. "A person may, by participating in a game, or by other conduct, consent to an act which might otherwise constitute a battery." (5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 350, p. 438; see also BAJI No. 7.51.) Here, however, we need not dwell on whether Jewett can successfully interpose a defense of consent to Knight's assault and battery cause of action.

Inasmuch as this case reaches us on appeal from a summary judgment in favor of Jewett, it is only necessary for us to determine whether there is any possibility Knight may be able to establish her case. (Neinstein, supra, 185 Cal.App.3d at p. 179, 229 Cal.Rptr. 612.)

A requisite element of assault and battery is intent. (Prosser, supra, § 9, p. 41; see also BAJI No. 7.51.) Here, however, there is no evidence that Jewett intended to injure Knight or commit a battery on her. Moreover, the record affirmatively shows Knight does not believe Jewett had the intent to step on her hand or injure her.^[7] Without the requisite intent, Knight cannot state a cause of action for assault and battery.

A motion for summary judgment is addressed to the sound discretion of the trial court and, absent a clear showing of abuse, the judgment will not be disturbed on appeal. (Hoffman v. Citadel General Assurance, Ltd. (1987) 194 Cal.App.3d 1356, 1362, 240 Cal.Rptr. 253.) On this record, we discern no abuse of discretion; the granting of summary judgment was proper.

DISPOSITION

Affirmed.

BENKE and LIM,^[*] JJ., concur.

[1] The position of the Segoviano court is also contrary to that of Restatement of the Law, Torts 2d (1965) section 496 C, at pages 432-436, and a number of non-California authorities (see Prosser & Keaton, Torts (5th ed. 1984) § 68, pp. 497-498).

[2] Subsequent published cases have adopted this position. See e.g., Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755 (Second Appellate District); Nunez v. R'Bibo (1989) 211 Cal.App.3d 559, 260 Cal.Rptr. 1 (Second Appellate District).

[3] We also find unpersuasive Knight's arguments that cases such as Ordway, supra, 198 Cal.App.3d 98, 243 Cal.Rptr. 536, involving professional sports should not apply here. Ordway makes it clear the assumption of risk doctrine applies to amateur athletics as well: "[T]he individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care." (Id. at p. 104, 243 Cal.Rptr. 536.)

[4] The question of duty is decided by the court, not the jury. (6 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 748, p. 83.) In Ballard v. Uribe (1986) 41 Cal.3d 564, 572-573, footnote 6, 224 Cal.Rptr. 664, 715 P.2d 624, our Supreme Court observed: " '[D]uty' is not an immutable fact of nature ' "but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." ' [Citations.] ... [A] court's task--in determining 'duty'--is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party." (Emphasis in original.)

[5] We also note that in his answer to the complaint, Jewett pled consent as an affirmative defense to the assault and battery cause of action.

[6] Assuming arguendo that the trial court did erroneously apply assumption of the risk to the assault and battery cause of action, it would not necessarily be reversible error. "Where a motion for summary judgment has been granted and there is a sufficient ground to support the judgment entered thereon, it will be upheld regardless of the grounds on which the trial court based its decision." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 261(d), p. 268; Snider v. Snider (1962) 200 Cal.App.2d 741, 746, 19 Cal.Rptr. 709; Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211, 223 Cal.Rptr. 645.) " 'The fact that the action of the [trial] court may have been based upon an erroneous theory of the case, or upon an improper or unsound course of reasoning, cannot determine the question of its propriety.... [A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason.' " (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 267, 147 Cal.Rptr. 1.) Thus, "[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion." (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 259, p. 266).

[7] The deposition of Kendra Knight was taken on October 19, 1988, and offered in support of the motion for summary judgment. Ms. Knight testified as follows:

"Q. Do you believe that Mr. Jewett was trying to step on your hand? Do you have any reason to believe he had any intention to hurt you?

"A. No."

[*] Assigned by the Chairperson of the Judicial Council.

250 N.Y. 479

JAMES MURPHY, an Infant, by JOHN MURPHY, His Guardian ad Litem, Respondent,

v.

STEEPLECHASE AMUSEMENT CO., INC., Appellant.

Murphy v. Steeplechase Amusement Co., Inc., 224 App. Div. 832, reversed.

(Submitted March 25, 1929; decided April 16, 1929.)

APPEAL from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered November 12, 1928, affirming a judgment in favor of plaintiff entered upon a verdict.

[480] Gardiner Conroy and Reginald S. Hardy for appellant. There was no proof of any negligence on the part of the appellant. (O’Toole v. Thousand Island Park Assn., 206 App. Div. 31; Tryon v. Chalmers, 205 App. Div. 816; Dunning v. Jacobs, 15 Misc. Rep. 85; Flynn v. Central R. R. Co. of N. J., 142 N. Y. 439; Dwyer v. Hills Brothers Co., 79 App. Div. 45; Horton v. Vulcan, 13 App. Div. 508; Camp v. Wood, 76 N.Y. 92; Hart v. Grennell, 122 N.Y. 371; Larkin. O’Neill, 119 N.Y. 221; Essig v. Lumber Operating & Mfg. Co., 183 App. Div. 198.) The risks

incident to the "flopper" were open and obvious and assumed by the respondent as a matter of law. (Knottnerus v. North Park Street R. Co., 93 Mich. 348; Lumsden v. Thompson Scenic Railway Co., 130 App. Div. 209; Barrett v. Lake Ontario Beach Imp. Co., 174 N.Y. 310; Matter of Moloney v. Cunard Steamship Co., 217 N.Y. 278.)

Charles Kennedy for respondent. The negligence of the appellant was clearly established. (Barrett v. Lake Ontario Beach Co., 174 N. Y. 310; Breen v. N. Y. C. & H.R.R.R. Co., 109 N. Y. 297; Cleveland v. Steamboat Co., 125 N.Y. 299; Donnelly v. City of Rochester, 166 N.Y. 315; Barrett v. Lake Ontario Beach Imp. Co., 174 N.Y. 310.) The plaintiff did not assume the risk of defendant's negligence. (Penn Co. v. Backes, 133 III. 255; Dowd v. N.Y., 0. & W. R. R. Co., 170 N. Y. 459; Lumsden v. Thompson Scenic R.R. Co., 130 App. Div. 209.)

CARDOZO, Ch. J.

The defendant, Steeplechase Amusement Company, maintains an amusement park at Coney Island, New York.

One of the supposed attractions is known as "The Flopper." It is a moving belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring [481] beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power.

Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as every one understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, no adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff's wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. "I took a chance," she said when asked whether she thought that a fall might be expected.

Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged.

[482] We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circumstances by the addition of the facile comment that it threw him with a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a tense and crowded moment (Matter of Case, 214 N.Y. 199; Dochtermann v. Brooklyn Heights R.R. Co., 32 App. Div. 13, 15; 164 N.Y. 586; Foley v. Boston & Maine R. R. Co., 193 Mass. 332, 335; Work v. Boston El. Ry. Co., 207 Mass. 447, 448; N. & W. Ry. Co. v. Birchett, 252 Fed. Rep. 512, 515). But the jerk, if it were established, would add little to the case. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen (Lumsden v. Thompson Scenic Ry. Co., 130 App. Div. 209, 212, 213).

Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball (Pollock, Torts [11th ed.], p. 171; Lumsden v. Thompson Scenic Ry. Co., supra; Godfrey v. Conn. Co., 98 Conn. 63; Johnson v. City of N. Y., 186 N.Y. 139, 148; McFarlane v. City of Niagara Falls, 247 N.Y. 340, 349; cf. 1 Beven, Negligence, [483] 787; Bohlen, Studies in the Law of Torts, p. 443). The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such a fall. The timorous may stay at home.

A different case would be here if the dangers inherent in the sport were obscure or unobserved (Godfrey v. Conn. Co., supra; Tantillo v. Goldstein Bros. Amusement Co., 248 N.Y. 286), or so serious as to justify the belief that precautions of some kind must have been taken to avert them (cf. O'Callaghan v. Dellwood Park Co., 242 Ill. 336). Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change. The president of the amusement company says that there had never been such an accident before. A nurse employed at an emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say. None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant's estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might as well say that a skating rink should be abandoned because skaters sometimes fall.

[484] There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding. He is strongly contradicted by the photographs and by the witnesses for the defendant, and is without corroboration in the testimony of his companions who were witnesses in his behalf. If his observation was correct, there was a defect in the equipment, and one not obvious or known. The padding should have been kept in repair to break the force of any fall. The case did not go to the jury, however, upon any such theory of the defendant's liability, nor is the defect fairly suggested by the plaintiff's bill of particulars, which limits his complaint. The case went to the jury upon the theory that negligence was dependent upon a sharp and sudden jerk.

The judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

POUND, CRANE, LEHMAN, KELLOGG and HUBBS, JJ., concur; O'BRIEN, J., dissents on the authority of Tantillo v. Goldstein Brothers Amusement Co. (248 N.Y. 286).

Judgments reversed, etc.

[20 Cal.Rptr.2d 144] [16 Cal.App.4th 652] Matthew D. Alger, Attorney Kent C. Wilson, Attorney Wilson, Alger & Grenlich, San Ramon, for plaintiff and appellant.

Gina Dashman Boer, Fred M. Feller, York, Buresh, & Kaplan, A Professional Corp., Berkeley, for defendant and respondent.

SMITH, Associate Justice.

Plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment^[1] in favor of defendant-respondent Suzanne McIntyre and her parents in plaintiff's action for negligence brought as a result of injuries he suffered while treating defendant's dog Lobo. This case is on remand from the California Supreme Court for reconsideration in light of Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ). After reviewing Knight and other authorities, we reaffirm our previous ruling that Cohen's recovery is, as a matter of law, barred by the doctrine of assumption of the risk.

BACKGROUND

With one noted exception (see fn. 2 post) we repeat the statement of facts as set forth in our prior opinion:

[16 Cal.App.4th 653] Plaintiff Cohen is a veterinarian employed by the County of Contra Costa. In his 16 years of experience, he had been bitten twice before while treating dogs. On March 17, 1988 defendant Suzanne McIntyre brought her dog Lobo to the Contra Costa Veterinary Clinic for a pre-neutering examination. Lobo had bitten three people in the past two years and defendant wanted him neutered because she thought it would "mellow" him.

After about five minutes, Cohen bent down to pick the dog up off the floor. As soon as he touched Lobo, the dog turned and snapped at the veterinarian's left arm, causing him to withdraw.^[2] He gave defendant a muzzle and instructed her that the dog had to be muzzled before he could proceed any further. After several attempts, defendant succeeded in muzzling the dog. Cohen lifted the dog onto the table and performed the pre-neutering examination. When he was finished, Cohen placed the dog back on the floor and, without seeking assistance from defendant, removed the muzzle from Lobo. As soon as [20 Cal.Rptr.2d 145] the muzzle was off, the dog turned and bit the doctor several times. At no time did Cohen ask for nor did defendant volunteer, any information about whether the dog had a propensity to bite.

Cohen filed a form complaint against defendant and her parents^[3] with the designation "Personal Injury/Dog Bite" containing one cause of action for negligence. It alleged that defendants failed to warn Cohen of the dog's vicious propensities and exposed him to being bitten. An "Exemplary Damages" attachment alleged that defendant knew of the dog's vicious propensities yet failed to warn and concealed them from Cohen.

The trial court granted summary judgment in favor of defendant, and this court affirmed. The California Supreme Court granted review pending the outcome of its decision in Knight. The case has now been retransferred to us for reconsideration in light of that opinion.

APPEAL

In Knight, a three-judge plurality of the state Supreme Court (with a fourth, Justice Mosk, concurring in the result) effectively abolished the [16 Cal.App.4th 654] previous judicial categorization of assumption of the risk into "reasonable" and "unreasonable" forms for purposes of determining whether the doctrine has been subsumed by the comparative negligence principles adopted by the court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226 (Li ). (See, e.g., Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 102-105, 243 Cal.Rptr. 536.) After analyzing Li and the authorities it cites, Knight declared that survival of the doctrine as a defense in any given fact situation should instead turn on the distinction between "primary" and "secondary" assumption of risk. Primary assumption of the risk according to Knight refers to "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...." Secondary assumption involves "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 296, 308, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

Knight held that "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." (Knight, supra, 3 Cal.4th 296, 309, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In a footnote most significant to the case at bar, the court held that 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.' [Citation.] 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. [Citation.] 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." (Id., fn. 5, at pp. 309-310, 11 Cal.Rptr.2d 2, 834 P.2d 696, emphasis added.)

After this quote, the court cites not only Baker v. Superior Court (1982) 129 Cal.App.3d 710, 181 Cal.Rptr. 311, a firefighter's case, but Nelson v. Hall (1985) 165 Cal.App.3d 709, 211 Cal.Rptr. 668 (Nelson ). In Nelson the rationale of firefighter's rule was extended to veterinarians and their assistants who are bitten while an animal [20 Cal.Rptr.2d 146] under their control is receiving care and treatment. There, a veterinary assistant who was unaware of any vicious propensities of a dog which had been brought in for a minor operation, was bitten without warning while holding the animal on the operating table. (Id., [16 Cal.App.4th 655] at p. 712, 211 Cal.Rptr. 668.) In announcing a "veterinarian's rule," the Nelson court held that the risk of being attacked or bitten in the course of veterinary treatment is an occupational hazard which veterinarians accept by undertaking their employment and are in the best position to guard against by taking the necessary precautions. "The risk of dog bites during treatment is a specific known hazard endemic to the very occupation in which plaintiff voluntarily engaged." (Id., at p. 714, 211 Cal.Rptr. 668.) In Willenberg v. Superior Court (1986) 185 Cal.App.3d 185, 229 Cal.Rptr. 625, the court applied the Nelson rule to bar a claim by a veterinarian who was attacked by a dog which suddenly leaped off the examination table.

Applying the above principles to the case at bar, it is apparent that this case falls within the "primary" category of assumption of the risk referred to in the Knight analysis. Cohen, a licensed veterinarian, was injured during the course of treating an animal under his control, an activity for which he was employed and compensated and one in which the risk of being attacked and bitten is well known. Thus, this is a classic situation where a defendant's ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.^[4]

Cohen contends that due to defendant's nondisclosure of the dog's history, he was unaware of the magnitude of the risk, since Lobo had only "snapped insignificantly" during his initial encounter with Cohen. Knight makes it clear, however, that a plaintiff's subjective knowledge or appreciation of the nature or magnitude of the potential risk is no longer a relevant inquiry. Rather the focus is whether, in light of the nature of the sport or activity involved, it can be said that defendant breached a legal duty of care to plaintiff. (Knight, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) In the sporting context, Knight held that a defendant is liable only where he intentionally injures another player or his conduct is so reckless that it is totally outside the range of the ordinary activity involved in an active sport. (Id., at pp. 318, 320, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Applying the same reasoning to the veterinary context, it follows that defendant owed no duty of care to Cohen unless she either engaged in intentional concealment or misrepresentation, or her conduct was so reckless as to fall totally outside the range of behavior ordinarily expected of those who avail themselves of veterinary services. Neither can be said in the present case.

There is nothing in the evidence which would support a conclusion that defendant deliberately or maliciously withheld information from Cohen. [16 Cal.App.4th 656] Defendant brought her male dog to Cohen's office because she wanted him neutered. Cohen did not ask why defendant wanted him neutered and defendant had no reason to believe she needed to tell him. Her failure to volunteer information about Lobo's prior history was particularly understandable in view of the fact that the dog had already displayed aggressive behavior to a point where the vet insisted that the dog be muzzled before the examination could continue. In sum, defendant's silence did not amount to the type of intentional or reckless conduct which would justify an exception to the normal "no duty" rule in a primary assumption of the risk case. (See Stimson v. Carlson (1992) 11 Cal.App. 4th 1201, 1205-1206, 14 Cal.Rptr.2d 670 [defendant sailboat captain's failure to observe custom of calling out course changes not sufficient [20 Cal.Rptr.2d 147] "reckless conduct" so as to change the fundamental risk of being struck by a boom while sailing].)^[5]

Cohen argues that even if this is a "primary" assumption of the risk case, it falls within the established exception holding the doctrine inapplicable where the defendant misrepresents or changes the nature of the hazard which is encountered. Two examples of this exception are found in Lipson v. Superior Court (1982) 31 Cal.3d 362, 182 Cal.Rptr. 629, 644 P.2d 822 and Von Beltz v. Stuntman, Inc. (1989) 207 Cal.App.3d 1467, 255 Cal.Rptr. 755.

In Lipson, a fireman who was summoned to the scene of a boilover at a chemical plant was falsely told that the accident involved no toxic substances. He took no precautions to protect himself and contracted cancer some years later. The court held, on public policy grounds, that the fireman's rule should not apply to bar a firefighter who has been injured as a proximate result of defendant's misrepresentation of the risk he confronts. (Lipson v. Superior Court, supra, 31 Cal.3d 362, 371-372, 182 Cal.Rptr. 629, 644 P.2d 822.) Similarly, in Von Beltz, a stuntwoman participated in a stunt involving a high speed auto chase. Although the first take went without incident, the director changed the stunt on the second take without the plaintiff's knowledge. The second take involved a far more dangerous stunt in which the sports car would "weave in and out of the oncoming cars in serpentine fashion" at twice the original speed. (Von Beltz v. Stuntman, Inc., supra, 207 Cal.App.3d 1467, 1476, 255 Cal.Rptr. 755.) Relying on Lipson, the court held that assumption of the risk should not apply where the defendant changed the nature of the danger the plaintiff confronted. (Id., at pp. 1479-1480, 255 Cal.Rptr. 755.)

[16 Cal.App.4th 657] Lipson and Von Beltz do not control here. In both of those cases the defendants significantly altered the risk without the plaintiff's knowledge. Such behavior would logically fall within the reckless or intentional misconduct exception referred to in Knight. Here, however, the risk that the dog might bite remained the same and was acknowledged by both parties. The only alteration of that risk was brought about by Cohen when he removed the muzzle at the conclusion of the examination, thereby exposing himself to the very danger against which he had just guarded.

Finally, Cohen suggests that since the determination of whether there is a duty is traditionally resolved in terms of foreseeability, a jury should be permitted to determine the factual question of whether or not defendant exposed Cohen to a risk of foreseeable harm. But Knight makes it clear the determination of whether assumption of risk applies is now a legal, not a factual, issue. The court held that under the revised analysis "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. [Citation.] Thus, the question of assumption of the risk is much more amenable to resolution by summary judgment...." (Knight, supra, 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696, last emphasis added.)

We conclude that this is a "primary" assumption of the risk case as defined in Knight, and that defendant's conduct did not fall so totally outside the ordinary scope of the activity at bar as to justify the imposition of liability. Summary judgment was properly granted.

[20 Cal.Rptr.2d 148] DISPOSITION

Affirmed.

KLINE, P.J., and BENSON, J., concur.

[1] The appeal is purportedly taken from a nonappealable minute order granting defendant's motion for summary judgment. In the interests of justice we will amend the order to incorporate a judgment of dismissal and deem the notice of appeal as applying to that judgment. (See Kendall v. Ernest Pestana, Inc. (1985) 40 Cal.3d 488, 493, fn. 3, 220 Cal.Rptr. 818, 709 P.2d 837.)

[2] Defendant indicated in her deposition that after the dog snapped, Cohen said something like "When were you going to tell me the dog might bite, after he has my arm?" In his supplemental letter brief, Cohen strongly objects to the inclusion of the statement as an uncontradicted fact in our prior decision because (1) it was presented in the form of a leading question by an attorney (2) it was first raised before the trial court in defendant's reply brief and (3) Cohen had no opportunity to file rebuttal evidence. We omit the statement in this summary because it is immaterial to our ultimate conclusion.

[3] While McIntyre's parents were nominal defendants in the suit, Cohen does not assert any error as to the summary judgment granted in their favor. Hence, all further references to "defendant" are to Suzanne McIntyre, the dog's owner.

[4] Likewise, no duty on the part of defendant can be predicated on Civil Code section 3342, the "dog bite statute," since the statute was designed to protect persons from being bitten in public places, not to protect veterinarians administering treatment in the privacy of their offices. (See Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1399, 14 Cal.Rptr.2d 679.)

[5] Cohen's claim that he did not realize the full extent of the danger because he reasonably believed only that the dog might snap at him closely parallels the claim rejected in Knight. There, the plaintiff submitted evidence supporting her assertion that she reasonably believed the touch football game in which she took part would be " 'mellow' " and not a serious competitive event in which she could be seriously injured. (Knight, supra, 3 Cal.4th 296, 302, 11 Cal.Rptr.2d 2, 834 P.2d 696.) Because the court focused only on the nature of the defendant's conduct in the context of the activity, the plaintiff's misapprehension of the danger, whether reasonable or not, did not raise a triable issue of fact such as to avoid summary judgment.

[56 Cal.App.4th 113] Marjorie A. Seapy, Claremont, for Plaintiff and Appellant.

Roberts and Morgan, and Arthur K. Cunningham, Riverside, for Defendants and Respondents.

[56 Cal.App.4th 114] OPINION

McDANIEL, Associate Justice.^[*]

John Lowe (Plaintiff) was seriously injured when struck on the left side of his face by a foul ball while attending a professional baseball [65 Cal.Rptr.2d 106] game. The game was being played at "The Epicenter," home field of the Rancho Cucamonga Quakes, Class "A," minor league baseball team.

The Quakes, at their home games, feature a mascot who goes by the name of "Tremor." He is a caricature of a dinosaur, standing seven feet tall with a tail which protrudes out from the costume. Tremor was performing his antics in the stands just along the left field foul line. Tremor was behind plaintiff and had been touching him with his (Tremor's) tail. Plaintiff was thereby distracted and turned toward Tremor. In the next moment, just as plaintiff returned his attention to the playing field, he was struck by a foul ball before he could react to it.

Very serious injuries resulted from the impact. As a result, the underlying action was commenced against the California League of Professional Baseball and Valley Baseball Club, Inc., which does business as the Quakes (defendants). The case was resolved in the trial court by summary judgment entered in favor of defendants.

Defendants were able to persuade the trial court, under the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296, 11 Cal.Rptr.2d 2, 834 P.2d 696), that defendants owed no duty to plaintiff, as a spectator, to protect him from foul balls. Such rationalization was faulty. Under Knight, defendants had a duty not to increase the inherent risks to which spectators at professional baseball games are regularly exposed and which they assume. As a result, a triable issue of fact remained, namely whether the Quakes' mascot cavorting in the stands and distracting plaintiff's attention, while the game was in progress, constituted a breach of that duty, i.e., constituted negligence in the form of increasing the inherent risk to plaintiff of being struck by a foul ball.

Thus, the trial court improperly granted the motion for summary judgment and it must be reversed accordingly.

SYNOPSIS OF TRIAL COURT PROCEEDINGS

In the action, filed after his injury, plaintiff's complaint was styled in a single count, a refreshing example of clear and concise pleading. The key [56 Cal.App.4th 115] charging allegations were contained in two paragraphs: "5. On said date and some time after the stated time and after the seventh inning, 'Tremor' the Quake's mascot, came up into the stadium in the area where plaintiff and his group were seated. Tremor was accompanied by an usher as he performed antics and entertained the crowd. Tremor is a person who wears a dinosaur costume with a long protruding tail. As John Lowe sat in his assigned seat, he was facing forward and looking toward the playing field when suddenly, and without warning or his consent, his right shoulder was touched by the tail of Tremor's costume. As he turned to his right to see who, or what, was touching him, baseball play had resumed and a batted ball, believed to be a foul ball, hit the plaintiff on the left side of his face breaking multiple facial bones. [p] 6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

After an unsuccessful demurrer, defendants noticed a motion for summary judgment.^[1]

The notice contained no recitation of the grounds for the motion. However, as required by statute, defendants filed a separate statement of undisputed facts. Without the accompanying tabulation here of evidence for such statement of facts, they included: "1. On July 26, 1994, at approximately 7:05 p.m., plaintiff was in attendance at a baseball game between the Rancho Cucamonga Quakes and the San Bernardino Spirit at the Epicenter baseball facility and was seated in an area of [65 Cal.Rptr.2d 107] the left terrace. [p] 2. Plaintiff was struck by a foul ball by the Quakes mascot, Tremor [sic], who was entertaining in the area where plaintiff was seated. [p] 3. The plaintiff had been to the Epicenter on at least two previous occasions. [p] ... [p] 7. Plaintiff Lowe had witnessed foul balls being hit into the stands on many occasions. [p] 8. Plaintiff Lowe had personally witnessed at least one fan being struck by a foul ball. [p] 9. Plaintiff Lowe did not request a protected seat. [p] 10. The Epicenter did have protected seats.... [p] 11. Many of the teams in the California League of Professional Baseball have mascots. [p] 12. The mascots have become an intrical [sic] part of the game.... [p] 14. The Epicenter stadium has approximately 2500 seats which are protected by screens."

[56 Cal.App.4th 116] As evidentiary support for their motion, defendants filed the declaration of Joseph M. Gagliardi, president of the California League of Professional Baseball. Such declaration pointed out that seven of the ten teams in the California League have mascots. Among other things, the Gagliardi declaration stated, "[m]ost of the mascots have taken on a specific caricature such as Disney/Warner Brothers animations for each team. They are personable in their duties and responsibilities and try to make as much contact with the public to keep fan interest active. Fans have become accustomed to having the mascots entertain them. The mascots perform their routines nightly on the playing field and in the public seating area. [p] While the clubs encourage the mascots' interaction, especially with the young children so that they are comfortable at a ballpark game situation, the mascots' activities include keeping the fans informed, generating fan participation in promotions/advertisements, and helping with crowd control. Greeting the customer is an essential part of the ball club's public relations efforts." Defendants also filed extended excerpts of plaintiff's deposition, supported by the authenticating declaration of James L. Price, counsel for plaintiff. These deposition excerpts provide an insight into how plaintiff was injured:

"Q ... Where was the mascot at the time that the foul ball was hit?

"A Directly behind me.

. . . . .

"Q How long had the mascot been directly behind you at the time you were hit?

"A I would say probably two minutes.

"Q Was the mascot standing in the same place for that long?

"A He was moving around back and forth. But whatever he was doing, he was doing it directly behind my seat.

"Q So he was at the row or in the row behind your row?

"A Our row of seats backed up to an aisle. He was standing in the aisle directly behind my seat.

. . . . .

"Q And at the time that you were hit, the mascot was standing behind your row of seats in the aisle?

[56 Cal.App.4th 117] "A Yes.

"Q Did any part of the mascot's costume or person touch you before you were hit?

"A Yes.

"Q And what or how were you touched by this mascot?

"A With his tail.

"Q When did that occur in relationship to when you were hit by the ball?

"A Well, during that approximate two-minute span he was doing his act. And I felt this bam, bam, bam, on the back of my head and shoulders, and I turned around to see what he was doing....

"Q You felt something on your shoulders?

"A Right.

"Q How do you know it was the tail that tapped you on the shoulder?

"A I turned around and looked.

. . . . .

"Q And when you turned around and looked, what did you see?

"A Well, I noticed that he was doing his antics to the crowd that was in the immediate area. And I saw that as he was turning his body, his tail was hitting me.

[65 Cal.Rptr.2d 108] "Q Is that something that you actually saw or is that something that you assumed that the tail was hitting you?

"A No, I saw the tail.

. . . . .

[p] "I could see the stump of the tail hitting me....

. . . . .

"Q All right. Were you annoyed by the mascot's tail tapping you on the shoulder?

[56 Cal.App.4th 118] "A Initially, no, but as it continued, it was a little bothersome.

. . . . .

"Q Where were you looking at the moment the ball was hit?

"A I had just turned my head towards the field as the ball arrived.

"Q And in terms of timing, was it almost instantaneous that you turned your head to the field and got hit?

"A Yes.

. . . . .

"Q Where were you looking immediately before you turned your head toward the field?

"A Up at Tremor.

. . . . .

"Q And at that time you were looking at Tremor immediately before turning your head back to the field and getting hit, was the reason that you were looking at Tremor that his tail had just tapped you on the shoulder again and you turned around and looked?

"A Yes.

. . . . .

"Q Were you eating or drinking anything at that time?

"A I was not eating anything, there was no drink in my hand...."

Plaintiff filed opposition to the motion for summary judgment. Such opposition included a response to defendants' undisputed statement of facts. As to defendants' statement No. 2, namely that "plaintiff was struck by a foul ball by the Quakes mascot, Tremor, who was entertaining in the area where plaintiff was seated," plaintiff disputed it. In direct response, plaintiff declared, "[p]laintiff's complaint is mis-stated [sic]. Plaintiff was touched by the mascot, Tremor, without warning or consent, after baseball play resumed. Plaintiff was hit in the face by a foul ball as he turned to see who or what was touching him in the area of his right shoulder. As he turned his head [56 Cal.App.4th 119] back, a batted baseball hit the left side of the plaintiff's face breaking multiple facial bones. Paragraph five of plaintiff's complaint."

As to defendants' statement No. 12, namely that "[t]he mascots have become an intrical [sic] part of the game (per declaration of Joseph Gagliardi)," plaintiff disputed it. In direct response, plaintiff declared, "[t]he statement of Joe Gagliardi is a conclusion of a non-expert. It is also unintelligible since there is no such word as 'intrical' in Webster's Abriged [sic] Dictionary. According to the Press Enterprise article page 2, EXHIBIT 'D[,'] mascots are needed to make money ... but are not essential to the baseball game. Admission number 4, Mr. Lowe's Request For Admissions, Set One, both defendants admit the game can be played without the mascot being there. [ ]EXHIBIT 'E[.'] A mascot is a marketing tool, not an integral part of the game of baseball. [ ]Deposition of Mark Monninger [Tremor] page 15, Lines 4 through 14. EXHIBIT 'F[.']"

Otherwise, plaintiff objected to the declaration of Joseph Gagliardi, particularly that " '[t]he mascots have become an intrical [sic] part of the game.' " The objection noted further that "[t]his is hearsay without any applicable exception. In addition, non-experts, such as Mr. Gagliardi, are required to state facts rather than conclusions, Chatman v. Alameda County Flood Control [etc.] Dist[.] (1986) 183 Cal.App.3d 424, 228 Cal.Rptr. 257, 260. Plaintiff asks that Mr. Gagliardi's conclusions not be allowed into evidence. 2. Objection is made as to the [undated] article from the Riverside Press Enterprise newspaper. This is hearsay in that defendants are attempting to use this article to prove a matter here in dispute. This too is hearsay without any applicable exception. Plaintiff asks that the newspaper article not be allowed into evidence, or, in the alternative, [65 Cal.Rptr.2d 109] that it not be accepted as proof of any disputed matter which is at issue."

In the points and authorities filed in opposition to the motion, it was stated that "[f]or a period of at least two minutes, Tremor whacked the back of Mr. Lowe's head; back and shoulder with the tail portion of the Tremor costume. Finally, after being touched repeatedly in an annoying and unprivileged manner, Mr. Lowe turned around and saw that he was indeed being touched at that moment by the tail of the Tremor costume. As Mr. Lowe turned his face back toward the field, he was not aware that the game had again resumed and he was hit in the face by a line drive foul ball. The foul ball fractured numerous facial bones and caused dental injuries."

Otherwise, the points and authorities observed, "[t]he California Supreme Court has stated (in the context of injuries to participants) that a defendant generally has no duty to eliminate, or protect a plaintiff from risks inherent [56 Cal.App.4th 120] to the sport itself, but has only a duty not to increase those risks, Knight [,] supra[,] [sic] at pages 315 and 316[, 11 Cal.Rptr.2d 2, 834 P.2d 696]. A mascot is not integral to the sport of baseball, as is required by Knight [,] supra[,] [sic]. The unsupported statement of Mr. Gagliardi is nothing more than a self-serving statement of a party defendant. What a mascot is, according to the deposition of Mark Monninger [Tremor] at page 14, lines 10 through 25, see EXHIBIT 'A' page number 1, is a marketing tool or simply entertainment. Mark Monninger states in his deposition that he was sick two days during the 1994 season. The baseball game went on without him there[,] page 15[,] lines 4 through 15. Defendants['] Admission number 4 is that the game can be played without Tremor being present. They further [a]dmit in Admission number 10 that Tremor could entertain without even going into the stands, EXHIBIT 'B[.'] If that safety practice had been in place during 1994, Mr. Lowe would not have been interfered with and injured by the foul ball."

Further, within the parameters of the motion for summary judgment, plaintiff pointed out that "defendants have not addressed the issues raised in paragraph Six of Mr. Lowe's Complaint." That paragraph, earlier quoted, alleged, "6. The Left Terrace Section, where the plaintiff was seated with his group, is located northwesterly of the left field foul ball territory, and in the direct line of foul balls passing west of the third base line. Tremor's antics and interference, while the baseball game was in play, prevented the plaintiff from being able to protect himself from any batted ball and foreseeably increased the risks to John Lowe over and above those inherent in the sport."

Defendants replied to plaintiff's opposition. Such reply contained no evidentiary filings; it consisted only of additional points and authorities. The thrust of the filings was to argue that mascots have long been an "integral" part of large publicly attended sporting events.

With these filings before it, the trial court entertained oral argument of defendants' motion. At the outset, the court announced its tentative ruling. "The Defendant's [sic] Motion for Summary Judgment is granted. There are no triable issues of material fact. Plaintiff's claim is barred by the doctrine of primary assumption of the risk. Where a spectator at a ball game has chosen not to sit in a screened area, that person assumes the risk of being hit by a foul ball. I think it falls within the case of Neinstein versus Los Angeles Dodgers, Inc. [(1986)], located at 185 Cal.App.3d 176[, 229 Cal.Rptr. 612]." Despite extended argument by counsel for plaintiff, the tentative order above noted became the final order of the court.

A minute order was issued which indicated that the motion was granted, there being "no triable issue of material facts." Thereafter, a written judgment of dismissal, reflecting the minute order, was signed and entered. It [56 Cal.App.4th 121] recited that "[s]aid dismissal is premised upon the court's finding that there is no triable issue as to material fact, and that the moving parties are entitled to a judgment as a matter of law." This appeal followed.

DISCUSSION

In pursuing his appeal, plaintiff, challenging to the propriety of the summary judgment, assigned as trial court error: (1) its [65 Cal.Rptr.2d 110] improper application of the doctrine of the primary assumption of the risk; and (2) its reliance on a New York case, Clapman v. City of New York (1984) 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697.

In responding to the appeal, defendants rely on a collection of cases which are readily distinguishable on their facts from those facts in this record and hence, because they are wholly inapposite, require no further discussion or analysis.

We turn then to a consideration of the rationale relied on by plaintiff. In so doing, we are reminded that it is a summary judgment which is here for review. Such review is independent of that in the trial court but mirrors exactly the scenario followed there. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674.) That scenario is guided by precise statutory prescriptions set forth in section 437c of the Code of Civil Procedure. Of key significance are subdivisions (o)(2) and (c).

Subdivision (o)(2) provides in pertinent part, "[a] defendant ... has met his or her burden of showing that [the plaintiff's] cause of action has no merit if that party has shown ... that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to ... a defense thereto."

Subdivision (c) provides that, "[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Italics added.)

[56 Cal.App.4th 122] Under this prescription, the first step is an analysis of the pleadings, i.e., the complaint and answer, including any affirmative defenses that may be contained therein. "The pleadings define the issues to be considered on a motion for summary judgment." (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252, 38 Cal.Rptr.2d 65.)

The next step in the analysis calls for an evaluation of the moving defendant's effort to meet the burden of showing that plaintiff's cause of action has no merit or that there is a complete defense to it. This showing can also rely on filings by plaintiff in opposition. (Villa v. McFerren (1995) 35 Cal.App.4th 733, 743, 750-751, 41 Cal.Rptr.2d 719.) In any event, once a prima facie showing is made and hence that the "burden" has been met, it shifts to the plaintiff to show that a triable issue of material fact exists within the framework of that fixed by the pleadings. (Code Civ. Proc., § 437c, subd. (o)(2).)

Once the burden has shifted, it must next be determined if the filings in opposition succeeded in raising a triable issue of material fact. If they did, the motion must be denied; if they did not, the motion must be granted. (Code Civ. Proc., § 437c, subd. (c); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579, 37 Cal.Rptr.2d 653.)

As earlier noted, our review precisely mirrors what occurs in the trial court, i.e., we make a de novo evaluation which, after it be shown that there are no disputed issues of material fact, requires a legal determination of the moving party's entitlement to judgment. (Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844, 30 Cal.Rptr.2d 768.)

In compliance with the foregoing, we turn to the first step in the system of analysis above fashioned, i.e., to define the issues framed by the pleadings. With regard to the record provided us, this step is somewhat difficult to perform. As earlier noted, there was no copy of defendants' answer contained in the clerk's transcript. However, we can extrapolate from other filings that all of the allegations describing the gravamen of plaintiff's grievance were denied. Such grievance [65 Cal.Rptr.2d 111] can be found in paragraph six of the complaint as variously quoted above. In sum, those allegations pointed out that Tremor's antics in hitting plaintiff with its tail distracted plaintiff and "prevented plaintiff from being able to protect himself from any batted ball and foreseeably increased the risk to John Lowe over and above those inherent in the sport."

Otherwise, we assume that the answer introduced into the pleading mix the affirmative defense of the doctrine of primary assumption of the risk. We [56 Cal.App.4th 123] assume such based on defendants' points and authorities found at page 72 of the clerk's transcript.

As a practical matter, it appears to us that paragraph six actually anticipated the possibility of defendants' urging the doctrine of the primary assumption of the risk; hence, we shall treat such conclusion as framing the dispositive issue of fact, namely whether the mascot's antics and their resulting distraction of the plaintiff operated to increase the inherent risks assumed by a spectator at a baseball game. In this regard, as plainly stated in Knight, "... it is well 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." (Knight v. Jewett, supra, 3 Cal.4th 296, 315-316, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The rule is no different in instances involving spectators.

The next step in the summary judgment analysis is to determine whether defendants' evidentiary filings in support of their motion were sufficient to provide the factual basis for making their affirmative defense available and thereby shifting the burden to plaintiff to demonstrate a triable issue of fact with reference thereto. (Code Civ. Proc., § 437c, subd. (o)(2).)

As indicated earlier in the opinion, as part of the synopsis of the trial court proceedings, the only evidentiary filings by defendants in support of their motion were: (1) the declaration of Joseph Gagliardi; (2) a copy of a clipping from the Riverside Press Enterprise about mascots; and (3) excerpts of plaintiff's deposition. As prescribed by Knight, the burden to be surmounted by such filings was to show that any risk to spectators caused by the antics of the mascot did not operate to increase those inherent risks to which spectators at baseball games are unavoidably exposed. In other words, the key inquiry here is whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game. In the first instance, foul balls hit into the spectators' area clearly create a risk of injury. If such foul balls were to be eliminated, it would be impossible to play the game. Thus, foul balls represent an inherent risk to spectators attending baseball games. Under Knight, such risk is assumed. Can the same thing be said about the antics of the mascot? We think not. Actually, the declaration of Mark Monninger, the person who dressed up as Tremor, recounted that there were occasional games played when he was not there. In view of this testimony, as a matter of law, we hold that the antics of the mascot are not an essential or integral part of the playing of a baseball game. In short, the game can be played in the absence of such antics. Moreover, whether such antics increased the inherent risk to plaintiff is an issue of fact to be resolved at trial.

Our view of the entire record leads to the conclusion that defendants offered nothing in the way of either relevant or competent evidence to [56 Cal.App.4th 124] resolve prima facie the dispositive issue of fact above recited; thus they failed to shift to plaintiff the burden contemplated by section 437c, subdivision (o)(2) of the Code of Civil Procedure. In this posture, the trial court was presented with a circumstance illustrated by Bashi v. Wodarz (1996) 45 Cal.App.4th 1314, 53 Cal.Rptr.2d 635. In that case, a summary judgment was reversed by the reviewing court. Relying on Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 41 Cal.Rptr.2d 740, the Bashi court stated, " '[w]here the evidence presented by defendant does not support judgment in [their] favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.' " (Id. at p. 1318, 53 Cal.Rptr.2d 635.) That is what the record shows here. (See also Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1157, 203 Cal.Rptr. [65 Cal.Rptr.2d 112] 419.) In sum, because the burden never shifted to plaintiff requiring him to demonstrate a triable issue of material fact, it is unnecessary to pursue the analysis further.

Even so, we note further, under the holding in Neinstein v. Los Angeles Dodgers, supra, 185 Cal.App.3d 176, 229 Cal.Rptr. 612, absent any distraction by the mascot, that plaintiff could have assumed the risk. Justice Compton, writing in Neinstein, observed that the plaintiff "voluntarily elected to sit in a seat which was clearly unprotected by any form of screening.... She was sufficiently warned of the risk by common knowledge of the nature of the sport.... The Dodgers were under no duty to do anything further to protect her from the hazard." (Id. at p. 184, 229 Cal.Rptr. 612.) However, in Neinstein, there was no mascot bothering the plaintiff and thus distracting her attention from the playing field. Thus, Neinstein is readily distinguishable.

The same can be said of the Clapman case decided by the Court of Appeals of New York. In that case, a spectator at Yankee Stadium was struck by a foul ball. He contended that a vendor moving in front of him obscured his view. As to this contention, the court said that "respondents had no duty to insure that vendors moving about the stadium did not interfere with Clapman's view." (Clapman v. City of New York, supra, 63 N.Y.2d 669, 479 N.Y.S.2d 515, 468 N.E.2d 697, 698.) That is not this case. In Clapman, the plaintiff at all times was facing the field of play. Here, plaintiff, because of the distraction, had turned away. This presents a substantially different set of facts, recognized at once by anyone who has ever attended a professional baseball game.

Based upon the foregoing analysis, we hold that the trial court improperly granted the motion for summary judgment.

[56 Cal.App.4th 125] DISPOSITION

The judgment is reversed with directions to the trial court to vacate its order of January 7, 1996, and to enter a new and different order denying defendants' motion for summary judgment.

RICHLI, Acting P.J., and WARD, J., concur.

[*] Retired Associate Justice of the Court of Appeal, Fourth District, sitting under assignment by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

[1] The record on appeal does not contain a copy of an answer to the complaint; however, we assume that an answer was filed. It would not have been possible to move for summary judgment unless the case were at issue.

[103 Wn.2d 646] [695 P.2d 118] Davies, Roberts, Reid, Anderson & Wacker, Denny Anderson, Seattle, for appellant.

Williams, Lanza, Kastner & Gibbs, Mary H. Spillane, Seattle, for respondents.

DOLLIVER, Justice.

This is an appeal from a wrongful death [103 Wn.2d 647] medical malpractice action arising out of the bleeding death of a hospital patient who, for religious reasons, refused a blood transfusion. Plaintiff, the deceased's husband and personal representative, appeals the trial court's judgment on the verdict in which the jury reduced plaintiff's wrongful death damages by 75 percent based on an assumption of risk by the Shorters that Mrs. Shorter would die from bleeding. The defendant doctor appeals the judgment alleging that a plaintiff-signed hospital release form completely barred the wrongful death action. Alternatively, defendant asks that we affirm the trial court's judgment on the verdict. Defendant does not appeal the special verdict in which the jury found the defendant negligent.

The deceased, Doreen Shorter, was a Jehovah's Witness, as is her surviving husband, Elmer Shorter. Jehovah's Witnesses are prohibited by their religious doctrine from receiving blood transfusions.

Doreen Shorter became pregnant late in the summer of 1979. In October of 1979, she consulted with the defendant, Dr. Robert E. Drury, a family practitioner. Dr. Drury diagnosed Mrs. Shorter as having had a "missed abortion". A missed abortion occurs when the fetus dies and the uterus fails to discharge it.

When a fetus dies, it is medically prudent to evacuate the uterus in order to guard against infection. To cleanse the uterus, Dr. Shorter recommended a "dilation and curettage" (D and C). There are three alternative ways to perform this operation. The first is with a curette, a metal instrument which has a sharp-edged hoop on the end of it. The second, commonly used in an abortion, involves the use of a suction device. The third alternative is by use of vaginal suppositories containing prostaglandin, a chemical that causes artificial labor contractions. Dr. Drury chose to use curettes.

Although the D and C is a routine medical procedure, there is a risk of bleeding. Each of the three principal methods for performing the D and C presented, to a varying degree, the risk of bleeding. The record below reflects [103 Wn.2d 648] that the curette method which Dr. Drury selected posed the highest degree of puncture-caused bleeding risk due to the sharpness of the instrument. The record also reflects, however, that no matter how the D and C is performed, there is always the possibility of blood loss.

Dr. Drury described the D and C procedure to Mr. and Mrs. Shorter. He advised her there was a possibility of bleeding and perforation of the uterus. Dr. Drury did not discuss any alternate methods in which the D and C may be performed. Examination of Mr. Shorter at trial revealed he was aware that the D and C posed the possibility, albeit remote, of internal bleeding.

The day before she was scheduled to receive the D and C from Dr. Drury, Mrs. Shorter sought a second opinion from Dr. Alan Ott. Mrs. Shorter advised Dr. Ott of Dr. Drury's intention to perform the D and C. She told Dr. Ott she was a Jehovah's Witness. Although he confirmed the D and C was the appropriate treatment, Dr. Ott did not discuss with Mrs. Shorter the particular method which should be used to perform it. He did, however, advise Mrs. Shorter that "she could certainly bleed during the procedure" and at trial confirmed she was aware of that possibility. Dr. Ott testified Mrs. Shorter responded to his warning by saying "she had faith in the Lord and that things would work out ..."At approximately 6 a.m. on November 30, Mrs. Shorter was accompanied by her husband to Everett General Hospital. At the hospital the Shorters signed the following [695 P.2d 119] form (underlining after heading indicates blanks in form which were completed in handwriting):

                    GENERAL HOSPITAL OF EVERETT
                REFUSAL TO PERMIT BLOOD TRANSFUSION
                -----------------------------------
Date November 30, 1979             Hour 6:15 a.m.
     -----------------                  ---------
I request that no blood or blood derivatives be administered to
Dorreen V. Shorter
------------------
during this hospitalization.  I hereby release the hospital, its
personnel, and the attending physician from any responsibility
whatever for unfavorable reactions or any untoward results due
to my refusal to permit the use of blood or its derivatives and I
fully understand the possible consequences of such refusal on my
part.
                       (/s/ Doreen Shorter)
                      ----------------------
                              Patient
                        (/s/ Elmer Shorter)
                      ----------------------
                     Patient's Husband or Wife

The operation did not go smoothly. Approximately 1 hour after surgery, Mrs. Shorter began to bleed internally and go into shock. Emergency exploratory surgery conducted by other surgeons revealed Dr. Drury had severely lacerated Mrs. Shorter's uterus when he was probing with the curette.

Mrs. Shorter began to bleed profusely. She continued to refuse to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. Mrs. Shorter was coherent at the time she refused to accept blood. While the surgeons repaired Mrs. Shorter's perforated uterus and abdomen, Dr. Drury and several other doctors pleaded with Mr. Shorter to permit them to transfuse blood into Mrs. Shorter. He likewise refused. Mrs. Shorter bled to death. Doctors for both parties agreed a transfusion in substantial probability would have saved Doreen Shorter's life.

Mr. Shorter thereafter brought this wrongful death action alleging Dr. Drury's negligence proximately caused Mrs. Shorter's death; the complaint did not allege a survival cause of action. The release was admitted into evidence over plaintiff's objection. Plaintiff took exception to jury instructions numbered 13 and 13A which dealt with assumption of the risk.

The jury found Dr. Drury negligent and that his negligence was "a proximate cause of the death of Doreen Shorter". Damages were found to be $412,000. The jury determined, however, that Mr. and/or Mrs. Shorter "knowingly and voluntarily" assumed the risk of bleeding to death and attributed 75 percent of the fault for her death [103 Wn.2d 650] to her and her husband's refusal to authorize or accept a blood transfusion. Plaintiff was awarded judgment of $103,000. Both parties moved for judgment notwithstanding the verdict. The trial court denied both motions. Plaintiff appealed and defendant cross-appealed to the Court of Appeals, which certified the case pursuant to RCW 2.06.030(d).

The three issues before us concern the admissibility of the "Refusal to Permit Blood Transfusion" (refusal); whether assumption of the risk is a valid defense and if so, whether there is sufficient evidence for the jury to have found the risk was assumed by the Shorters; and whether the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. The finding of negligence by Dr. Drury is not appealed by defendant.

I

Plaintiff argues the purpose of the refusal was only to release the defendant doctor from liability for not transfusing blood into Mrs. Shorter had she required blood during the course of a nonnegligently performed operation. He further asserts the refusal as it applies to the present case violates public policy since it would release Dr. Drury from the consequences of his negligence.

Defendant concedes a survival action filed on behalf of Mrs. Shorter for her negligently inflicted injuries would not be barred by the refusal since enforcement would violate public policy. Defendant argues, however, the refusal does not release the doctor for his negligence but only for the consequences arising out of Mrs. Shorter's voluntary refusal to accept blood, which in this case was death.

While the rule announced by this court is that contracts against liability for negligence are valid except in those cases [695 P.2d 120] where the public interest is involved ( McCutcheon v. United Homes Corp., 79 Wash.2d 443, 486 P.2d 1093 (1971)), the refusal does not address the negligence of Dr. Drury. This being so it cannot be considered as a release from liability [103 Wn.2d 651] for negligence. Cf. Hewitt v. Miller, 11 Wash.App. 72, 521 P.2d 244 (1974). Whether a release which specifically absolved Dr. Drury from his negligence would have been valid or against public policy need not be decided and we reserve any comment on that issue. See Blide v. Rainier Mountaineering, Inc., 30 Wash.App. 571, 573-74, 636 P.2d 492 (1981); Tunkl v. Regents of Univ. of Cal., 60 Cal.2d 92, 383 P.2d 441, 32 Cal.Rptr. 33 (1963); Annot., Validity and Construction of Contract Exempting Hospital or Doctor from Liability for Negligence to Patient, 6 A.L.R.3d 704, 705 (1966 and Supp.1984).

Plaintiff categorizes the refusal as an all or nothing instrument. He claims that if it is a release of liability for negligence it is void as against public policy and if it is a release of liability where a transfusion is required because of nonnegligent treatment then it is irrelevant. We have already stated the document cannot be considered as a release from liability for negligence. The document is more, however, than a simple declaration that the signer would refuse blood only if there was no negligence by Dr. Drury. It is a specific request that no blood or blood derivatives be administered to Mrs. Shorter. The attending physician is released from "any responsibility whatever for unfavorable reactions or any untoward results due to my refusal to permit the use of blood or its derivatives." (Italics ours.) The release signed by the Shorters further stated: "I fully understand the possible consequences of such refusal on my part."

We find the refusal to be valid. There was sufficient evidence for the jury to find it was not signed unwittingly but rather voluntarily. See Baker v. Seattle, 79 Wash.2d 198, 484 P.2d 405 (1971); Restatement (Second) of Torts § 496B (1965). The record shows Dr. Ott advised Mrs. Shorter that her refusal to accept a transfusion could place her life in jeopardy if she bled from a D and C. Dr. Ott further testified there was a risk of bleeding with a routine D and C and that if she then refused a transfusion she might die. Specifically, Dr. Ott stated he advised Mrs. Shorter that if a [103 Wn.2d 652] perforation occurred at the time of the D and C she would be in grave jeopardy. He also stated Mrs. Shorter said she knew this but remained firm in her conviction to refuse a blood transfusion. Knowing this, and in response to their religious beliefs, the Shorters signed the refusal. In refusing a blood transfusion, the Shorters were acting under the compulsion of circumstances. The compulsion, however, was created by the religious convictions of the Shorters not by the tortious conduct of defendant. See Comments b & d, Restatement (Second) of Torts § 496E (1965).

We also hold the release was not against public policy. We emphasize again the release did not exculpate Dr. Drury from his negligence in performing the surgery. Rather, it was an agreement that Mrs. Shorter should receive no blood or blood derivatives. The cases cited by defendant, Tunkl v. Regents of Univ. of Cal., supra; Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977), all refer to exculpatory clauses which release a physician or hospital from all liability for negligence. The Shorters specifically accepted the risk which might flow from a refusal to accept blood. Given the particular problems faced when a patient on religious grounds refuses to permit necessary or advisable blood transfusions, we believe the use of a release such as signed here is appropriate. See Ford, Refusal of Blood Transfusions by Jehovah's Witnesses, 10 Cath.Law. 212 (1964). Requiring physicians or hospitals to obtain a court order would be cumbersome and impractical. Furthermore, it might subject the hospital or physician to an action under 42 U.S.C. § 1983. See Holmes v. Silver Cross Hosp., 340 F.Supp. 125 (N.D.Ill.1972). The alternative of physicians or hospitals refusing [695 P.2d 121] to care for Jehovah's Witnesses is repugnant in a society which attempts to make medical care available to all its members.

We believe the procedure used here, the voluntary execution of a document protecting the physician and hospital and the patient is an appropriate alternative and not contrary to the public interest.

[103 Wn.2d 653] If the refusal is held valid, defendant asserts it acts as a complete bar to plaintiff's wrongful death claim. We disagree. While Mrs. Shorter accepted the consequences resulting from a refusal to receive a blood transfusion, she did not accept the consequences of Dr. Drury's negligence which was, as the jury found, a proximate cause of Mrs. Shorter's death. Defendant was not released from his negligence. We next consider the impact of the doctrine of assumption of the risk on this negligence.

II

Plaintiff argues the trial court erred in admitting jury instructions 13 and 13A on the ground that assumption of the risk is no longer a recognized defense in Washington, except in products liability. Plaintiff alternatively argues that even if assumption of the risk remains a viable defense, there was no evidence in the present case from which the jury may have found that Mrs. Shorter, in signing the release form, knowingly and voluntarily assumed the risk that Dr. Drury would negligently perform the D and C, proximately causing her death.

Defendant argues the assumption of the risk doctrine remains viable after enactment of the former comparative negligence statute (RCW 4.22) in cases in which the plaintiff expressly, as opposed to impliedly, assumes the risk of the defendant's negligence. He further asserts Mrs. Shorter, when she signed the blood transfusion release, expressly assumed the risk of bleeding to death even though her chances of bleeding to death may have been increased by his negligence.

Jury instruction 13 provided:

Assumption of the risk is conduct on the part of a person claiming injury or damage which is a proximate cause of the injury or damage complained of.

If you find that Mr. or Mrs. Shorter assumed a risk which was a proximate cause of Mrs. Shorter's death, you must determine the degree of such conduct, expressed as a percentage, attributable to Mr. & Mrs. Shorter.... Using 100% as to the total combined conduct of the parties [103 Wn.2d 654] (negligence and assumption of the risk) which contributed to the damage to the plaintiff, you must determine what percentage of such conduct is attributable to Mr. or Mrs. Shorter.

Jury instruction 13A provided:

A person who fully understands a risk of harm to himself or a member of his family and who voluntarily submits to such risk under circumstances which manifest his willingness to assume the risk is not entitled to recover for harm within that risk.

In this case Mr. and Mrs. Shorter did not voluntarily assume the risk of negligence by defendant, but did voluntarily assume the risks relating to the refusal of transfusions of blood or blood products.

In Lyons v. Redding Constr. Co., 83 Wash.2d 86, 515 P.2d 821 (1973), decided before the enactment of the comparative negligence statute, we analyzed the assumption of risk doctrine. Plaintiff directs our attention to the following language in Lyons in which this court predicted that enactment of the comparative negligence statute would sound the death knell for the defense of assumption of risk.

The decision reached here today has been long-aborning. Somewhat ironically, its effects will be short-lived. The assumption of risk in special and limited situations or contributory negligence on the part of a plaintiff has the effect of denying all recovery regardless of degree of fault. But this all or nothing result will be abandoned or changed on April 1, 1974, because the Washington state legislature has recently enacted a [695 P.2d 122] comparative negligence statute [RCW 4.22.010, repealed in 1981 (Laws of 1981, ch. 27, p. 112), but in effect at the time of the events leading to this action] ...

... Accordingly, it has been held the effect of the comparative negligence standard shall be to completely abrogate the assumption of risk doctrine as known and applied heretofore.

Lyons, at 95-96, 515 P.2d 821.

Plaintiff misreads Lyons in asserting that it abandoned the defense of assumption of risk in toto. The reference of the Lyons court to the gloomy future of the assumption of risk doctrine was directed only at the form of [103 Wn.2d 655] assumption of risk where the plaintiff's conduct is contributorially negligent. This is referred to as "unreasonable assumption of risk". W. Keeton, Torts, § 68, at 497 (5th ed. 1984) (hereinafter W. Keeton). Other forms of assumption of risk, e.g., those not involving unreasonable plaintiff conduct, were not at issue in Lyons.

Courts and commentators have struggled with the issue as to whether and to what extent the defense of "reasonable" assumption of risk survives the enactment of comparative negligence statutes. See W. Keeton, supra § 68, at 495 n. 54 (citing commentators); Annot., Effect of Adoption of Comparative Negligence Rules on Assumption of Risk, 16 A.L.R.4th 700, 711 (1982). To determine whether the giving of the assumption of risk jury instruction was error, the type of risk the Shorters are alleged to have assumed must be identified.

Prosser classifies the forms of assumption of risk as follows: express, implied primary, implied reasonable, and implied unreasonable. W. Keeton, supra § 68, at 496. It is not argued the Shorters' conduct in assuming the risk is not "implied unreasonable" assumption of the risk; nor do we need to determine whether "implied primary" or "implied reasonable" assumption of risk survived the comparative negligence statute. See W. Keeton, supra § 68, at 496-98. We confine our analysis to the validity of express assumption of risk and the extent to which it applies in the circumstances of this case.

Express assumption of the risk is a defense when:

[T]he 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.

W. Keeton, supra § 68, at 480. Jurisdictions with comparative negligence statutes have generally held that the defense of express assumption of the risk survives the enactment of these statutes. V. Schwartz, Comparative Negligence § 9.2, at 159 (1974 & Supp.1981). See, [103 Wn.2d 656] e.g., Keegan v. Anchor Inns, Inc., 606 F.2d 35 (3d Cir.1979); Blackburn v. Dorta, 348 So.2d 287 (Fla.1977); Thompson v. Weaver, 277 Or. 299, 560 P.2d 620 (1977); Polsky v. Levine, 73 Wis.2d 547, 243 N.W.2d 503 (1976). Even jurisdictions whose comparative negligence statutes expressly incorporate assumption of the risk have upheld express assumption of risk. Becker v. Beaverton Sch. Dist. 48, 25 Or.App. 879, 551 P.2d 498 (1976); Wilson v. Gordon, 354 A.2d 398 (Me.1976) (dicta). But see Lamphear v. State, 91 A.D.2d 791, 458 N.Y.S.2d 71 (1982).

Former RCW 4.22.010 does not expressly state it abolishes the assumption of risk doctrine; it only mentions "contributory negligence". Express assumption of the risk, however, is not "negligence". It is merely a form of waiver or consent. W. Keeton, supra § 68, at 496. Keegan v. Anchor Inns, Inc., supra. We hold the doctrine of express assumption of risk survived the enactment of the comparative negligence statute, RCW 4.22.010, and is applicable in Washington. See Lyons v. Redding Constr. Co., 83 Wash.2d 86, 95, 515 P.2d 821 (1973).

The doctrine, assumption of risk, will, in the Prosser [W. Prosser, Torts § 68 (4th ed. 1971) ] idiom, have retained validity where there is an express agreement to assume, or the plaintiff has assumed a [695 P.2d 123] risk with knowledge of willful, wanton, or reckless negligence of the defendant.

(Italics in original omitted. Italics ours.) Lyons, at 95, 515 P.2d 821. See Klein v. R.D. Werner Co., 98 Wash.2d 316, 319, 654 P.2d 94 (1982). See also V. Schwartz, supra; W. Keeton, supra § 68, at 496.

The next question is whether the Shorters could be found by the jury to have expressly assumed the risk that Dr. Drury's performance of the D and C could be negligent, thereby increasing Mrs. Shorter's chances of bleeding to death. For a person expressly to assume the risk of another's conduct, that person must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, supra § 68, at 486-87; Martin v. Kidwiler, 71 Wash.2d 47, 49, 426 P.2d 489 (1967). The test is a subjective one: Whether the plaintiff in fact understood [103 Wn.2d 657] the risk; not whether the reasonable person of ordinary prudence would comprehend the risk. Martin v. Kidwiler, supra. We find the record contains sufficient evidence from which a jury could have concluded the Shorters understood and expressly assumed the risk of bleeding to death as a result of Dr. Drury's negligence.

The general rule is that for persons to assume a risk, they must be aware of more than just the generalized risk of their activities; there must be proof they knew of and appreciated the specific hazard which caused the injury. See Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 (9th Cir.1972); Garcia v. South Tucson, 131 Ariz. 315, 640 P.2d 1117 (Ct.App.1981). From this rule, plaintiff argues that while he and his wife were aware of the generalized risk of bleeding to death, they did not understand Mrs. Shorter's chances of bleeding to death would be greatly increased by Dr. Drury's negligence. The Shorters, however, did not merely assume a "generalized risk". They assumed the specific risk that Mrs. Shorter might die from bleeding if she refused to permit a blood transfusion. See Simpson v. May, 5 Wash.App. 214, 486 P.2d 336 (1971).

The Shorters signed the refusal which stated that they waived professional liability for "unfavorable reactions" or "untoward results" due to Mrs. Shorter's refusal to permit the use of blood. Mrs. Shorter consulted with Drs. Drury and Ott, both of whom advised her that the D and C, even if nonnegligently performed, could result in fatal bleeding. Furthermore, the Shorters were repeatedly advised Mrs. Shorter was bleeding and that without a transfusion her death was imminent.

Plaintiff calls our attention to the common law principle that a person cannot assume the risk of another's negligence. See, e.g., Regan v. Seattle, 76 Wash.2d 501, 458 P.2d 12 (1969) (driver of "go-cart" on race course does not assume extraordinary risk that there may be spilled water on the course); Wood v. Postelthwaite, 6 Wash.App. 885, 496 P.2d 988 (1972) (golfer does not assume extraordinary, unforeseen risk of being hit by golf ball due to inadequate [103 Wn.2d 658] warning but may assume other risks inherent in the game). While we do not question the rule, we disagree with plaintiff's assertion that it applies in this case.

The defendants do not argue, nor do we hold, that the Shorters assumed the risk of the "direct consequences" of Dr. Drury's negligence. Those "consequences" would be recoverable in a survival action under RCW 4.20.046, .050, and .060. Defendant argues, however, and we agree, that the Shorters could be found by the jury to have assumed the risk of death from an operation which had to be performed without blood transfusions and where blood could not be administered under any circumstances including where the doctor made what would otherwise have been correctable surgical mistake. The risk of death from a failure to receive a transfusion to which the Shorters exposed themselves was created by, and must be allocated to, the Shorters themselves.

The case of Mainfort v. Giannestras, 49 Ohio Op. 440, 111 N.E.2d 692 (C.P.1951) is on point. In Mainfort, the plaintiff, a diabetic, consulted with the defendant doctor regarding an operation to lengthen his leg. [695 P.2d 124] The doctor explained the operation was particularly risky, due to the possibility that a bone infection might result from the diabetes. The doctor alleged he advised the plaintiff the operation was risky, for the above reasons, "notwithstanding that said treatment and operation would be done in strict and full accord with approved and proper medical methods and practices". Mainfort, at 441, 111 N.E.2d 692. The plaintiff nevertheless consented. The doctor performed the operation negligently and the plaintiff's diabetic condition aggravated the doctor's negligence. Although it acknowledged that plaintiff did not assume the risk of the negligently performed operation, the court upheld the assumption of risk defense to the extent it barred negligence damages accruing to the plaintiff's diabetic conditions. The court held:

[103 Wn.2d 659] [The assumption of risk defense] is strictly confined to the consequences growing out of the diabetic condition, which condition, and the risks it attached to the operation, is alleged to have been fully made known to the plaintiff by the defendant before the plaintiff consented to the operation.

Mainfort, at 442, 111 N.E.2d 692.

Mr. and Mrs. Shorter did not assume the risk of the negligence. The risk they did assume was the risk of death as the consequence of their refusal to permit a blood transfusion.

III

Finally, plaintiff asserts the submission of the issue of assumption of the risk to the jury violated the free exercise clause of the First Amendment. Plaintiff concedes he has found no cases involving the effect of a patient's refusal of blood in a malpractice action. Nevertheless, plaintiff claims error in the refusal of the trial court to give his proposed instruction 24 which would have told the jury compensation could not be denied because of a refusal of blood for religious reasons. While the Supreme Court has stated the free exercise clause of the First Amendment forbids the "state condition[ing] receipt of an important benefit upon conduct proscribed by a religious faith", Thomas v. Review Bd., 450 U.S. 707, 717, 101 S.Ct. 1425, 1432, 67 L.Ed.2d 624 (1981), a prerequisite for First Amendment cases is that there be some state action or interference. Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Thomas v. Review Bd., supra. There is none here. This is a dispute between private individuals; plaintiff is denied no rights under the First Amendment.

To summarize: The refusal was properly placed before the jury; the instructions on assumption of the risk were not in error and the issue was properly before the jury; there was no violation of the free exercise clause of the First Amendment.

[103 Wn.2d 660] Affirmed.

WILLIAM H. WILLIAMS, C.J., DIMMICK and ANDERSEN, JJ., and CUNNINGHAM, J. Pro Tem., concur.

PEARSON, Justice (dissenting).

The majority holds the Shorters did not assume the risk of Dr. Drury's negligence. I fully agree. The refusal form did not specifically state that Dr. Drury was released from damages resulting from his negligence, nor is there evidence the Shorters were specifically aware of the precise nature and extent of possible injury. See Restatement (Second) of Torts § 496 B, Comment b, Comment d (1965); Colton v. New York Hosp., 98 Misc.2d 957, 414 N.Y.S.2d 866 (1979); Martin v. Kidwiler, 71 Wash.2d 47, 426 P.2d 489 (1967).

The majority further holds the Shorters assumed the risk of death at the point where Dr. Drury's negligence created a life-threatening situation; that holding is tantamount to a holding that the Shorters assumed the risk of Dr. Drury's negligence. Thus, the majority seeks to accomplish its desired result through an analysis that attempts to mask its real effect: substantially excusing the doctor from liability for his negligence. I do not agree with this analysis or result. I therefore dissent.

[695 P.2d 125] The majority's holding necessarily decides the Shorters assumed the risk of death from refusal to take blood, no matter how the necessity for blood arose. I would agree that if the necessity for blood resulted from the non-negligent performance of the procedure, the Shorters assumed the risk of death resulting from their refusal to take blood. See Colton v. New York Hosp., supra. But, if the need for blood arose from the doctor's negligence, the majority would hold the Shorters still assumed the risk of death resulting from their refusal to take blood. Unlike the majority, I see a significant difference between the two scenarios.

The risk of excessive bleeding inherent in the non-negligent performance of the procedure was increased by the [103 Wn.2d 661] Shorters' refusal to take blood; that is a risk properly allocated to the Shorters. The refusal form signed by the Shorters represents their assent to relieve Dr. Drury of his duty to administer blood if required by the non-negligent performance of the procedure. Mr. Shorter testified that such was his understanding at the time the procedure was performed. If Dr. Drury had performed the operation without negligence, but Mrs. Shorter had bled to death anyway, the doctor could not be held liable in this case.

However, the additional risk of bleeding to death created by the doctor's negligence is not a risk that should be allocated to the Shorters. If the Shorters are held to have assumed the risk of death from refusing blood, even when the blood was required because the doctor was negligent, that is in effect holding that the Shorters assumed the risk of the doctor's negligence. To expressly assume the risk of another's conduct, one must have knowledge of the risk, appreciate and understand its nature, and voluntarily choose to incur it. W. Keeton, Torts § 68, at 486-87 (5th ed. 1984); Martin v. Kidwiler, supra at 49, 426 P.2d 489. Express assumption of a risk requires assent to both the specific type and the magnitude of the risk. 57 Am.Jur.2d Negligence § 281, at 674 (1971). Additionally, a person does not have the duty to foresee negligence when he voluntarily exposes himself to a known risk. See Jones v. Wittenberg Univ., 534 F.2d 1203 (6th Cir.1976).

Traditional tort analysis forecloses the result reached by the majority because the evidence in this case is insufficient to support a finding of assumption of risk by the Shorters. Dr. Drury's negligence greatly increased Mrs. Shorter's chances of bleeding to death; thus, the "magnitude" of the risk was increased. The record clearly reflects the fact that the Shorters believed the procedure was routine. The dangers of performing the D and C were never fully explained to the Shorters; they were not informed that three methods of accomplishing the procedure were available, nor were they told that the method Dr. Drury planned to use was the method most likely to result in uterine perforation and [103 Wn.2d 662] excessive bleeding. The Shorters were merely informed of a generalized risk of bleeding inherent in the procedure. Awareness of a generalized risk is not sufficient to prove an express assumption of risk; there must be proof that a person knew and appreciated the specific hazard that caused the injury. See Runnings v. Ford Motor Co., 461 F.2d 1145, 1148 (9th Cir.1972); Martin v. Kidwiler, supra; Klein v. R.D. Werner Co., 98 Wash.2d 316, 654 P.2d 94 (1982).

The majority concedes the Shorters did not expressly assume the risk of the doctor's negligence. Having decided that, it logically follows that the Shorters did not expressly assume the risk of bleeding to death as a result of refusing blood, where the need for such blood resulted from the doctor's negligence rather than from the risks inherent in the procedure itself.

Accordingly, we come full circle: the Shorters did not assume the risk of negligence; they similarly did not assume the risk that a refusal of blood, which was necessitated by that negligence, would cause death. Only through the most strained analysis can the majority find that the Shorters assumed any risk here, beyond [695 P.2d 126] those risks inherent in a non-negligently performed procedure.

Thus, the jury could not have found that the Shorters assumed the risk of death under the facts here. I would hold it was error to submit the assumption of risk question to the jury. Accordingly, I would strike the finding that the Shorters assumed the risk of 75 percent of their injury and reinstate the full $412,000 verdict to Mr. Shorter. See Klein v. R.D. Werner Co., supra at 320, 654 P.2d 94.

DORE, BRACHTENBACH and UTTER, JJ., concur.