*1 Third June C014019. Dist. [No. 1993.] BUSH,
DOROTHY Plaintiff and Appellant, al., Respondents. PARENTS WITHOUT PARTNERS et Defendants and *3 Counsel
Brislain, Lenzi, Jr., Zink & Lenzi and Albert J. Plaintiff for and Appellant. Borton, Conron, Gifford, Petrini & Tom Halkides & James C. Morgan, Arthur L. for Morgan Defendants and Pappas Respondents.
Opinion
SPARKS, Bush sustained Plaintiff Dorothy injuries when she personal J. and fell while She dancing. sued the slipped organization sponsoring owning granted dance and the dance hall. trial court public agency her the risk. summary judgment against plaintiff upon based We shall reverse. History
Factual Procedural Plaintiff filed a for the local and inter- complaint personal injury against national of Parents Without chapters Without Partners Parents (collectively, event, Partners), and the Chico Area and Park sponsors Recreation (District), District owner of the Dance Hall the incident Melody where Plaintiff alleged general liability occurred. negligence premises complaint. Parents Without Partners District cross-complained against indemnity.
The District and Parents summary Without Partners jointly moved for judgment based doctrine of reasonable risk. implied assumption
The facts are taken from following the defendants’ statements of separate undisputed facts which were not in plaintiff agreed dispute: accident, her
Before attended at plaintiff least 36 dances sponsored Parents Without Partners Dance Hall in the 7 Melody past years. When first plaintiff arrived at the dance on the night she question observed a substance on the dance floor which she to be thought Ivory Snow Rakes. She had seen this substance used on the floor on at least three prior occasions and was aware the substance it made easier for the dancer’s foot to slide on the At floor. dances her before accident when she saw substance floor, plaintiff would dance not until the floor On was swept. those occasions, prior the floor would continue swept to be on and off through the evening. accident,
On the of her evening plaintiff waited until the substance had once, been once swept before Although she danced. the floor had been swept the substance was still visible. Plaintiff and fell while slipped dancing. After fall, she noticed the substance on her clothes.
In addition to plaintiff’s response the defendants’ statement undis- facts, puted filed her own statement of undisputed facts.1 that statement asserted the facts following were undisputed: 1The summary judgment statute contemplate does not the opposing party that will file a Instead, statement undisputed facts. it provides opposition papers that shall include “[t]he separate statement which responds moving to each of the material facts contended party to undisputed, indicating be agrees the opposing party disagrees whether or those facts undisputed. are The statement any also shall forth plainly concisely set other
326 dance,
The substance was to make it easier to not to applied floor make the never Plaintiff danced on the floor when she was slippery. able to see that the Plaintiff had danced substance was floor. two dances without incident on the of the accident and was night third dance when she and fell. She did not see other slipped any person slip and fall that before her accident. night
The trial court the defendants’ granted summary motion this appeal followed.
Discussion I Standard Review “A motion for if summary judgment ‘shall be all the granted papers submitted show that there is no triable issue as material fact and that any the moving (Code is entitled to a party judgment as a matter of law.’ Civ. Proc., 437c, (c).) subd. is to purpose summary judgment § ascertain, penetrate evasive language adept pleading and to means of affidavits, the (Molko presence Holy absence of triable issues of fact.” Spirit Assn. 46 Cal.3d 46].) Cal.Rptr. *5 Consequently, defendant is entitled to if the record summary judgment “[a] establishes as a matter of law that none of the asserted causes of plaintiff’s action can (Ibid.) prevail.”
“Since a summary motion raises judgment only of law questions regarding construction and effect of the and supporting opposing papers, we review them independently appeal, applying same three-step First, analysis of the required trial court. . . . we the issues framed identify tiie pleadings since it is these allegations to the motion must respond by a establishing defense complete or otherwise there is no showing factual basis relief for on any theory reasonably contemplated by oppo nent’s pleading. we Secondly, determine whether the moving ...[<][] Proc., 437c, material facts which opposing (Code party disputed.” concedes are Civ. § defendants, (b).) however, subd. object did not procedure the unorthodox used plaintiff and we shall therefore construe plaintiff’s each of claimed undisputed facts as an obverse claim that these disputed facts are purposes summary judgment of the motion. 2This statement is somewhat inconsistent with the plaintiff’s earlier admission that after the swept floor had been the first time the substance plaintiff’s was still visible on the floor. In opposing papers, explains her counsel deposition plaintiff that in her “states that she saw the swept was her arrival and only she danced. It after believed the after before substance was removed from the (Italics dance participated dancing.” floor that she in original.)
327 has facts which claim showing negate opponent’s established party’s judgment favor. When a justify judgment summary movant’s . . . [f] the third final is to justifies judgment, step motion facie prima triable, of a determine whether demonstrates existence opposition Productions, Bank (AARTS Inc. v. National material factual issue.” Crocker 1061, 203], (1986) citations 179 1064-1065 Cal.App.3d Cal.Rptr. [225 omitted.)
II Assumption the Risk case, After Court the trial court entered in this Supreme risk. assumption issued two of the opinions concerning doctrine 203, 696]; (Knight (1992) v. 3 Jewett Cal.4th 296 Cd.Rptr.2d [11 30, 724].) (1992) Ford Gouin 834 As Cal.4th 339 P.2d Cal.Rptr.2d Ford, we recently Arabian a lead explained, Justice authored opinion “[i]n which no other justice joined. Justice lead Knight, penned the George Chief opinion which Justice Lucas and Justice Arabian concurred. Justice provided Mosk with majority vote for the concurring opinion agreed part most with lead (Knight, & opinion. supra, Cal.4th cone. Mosk, J.) opn. dis. Because strong commands a plurality, risk, because it speaks generally to the doctrine implied assumption we will follow Knight (Davis here.” v. Gaschler 11 Cal.App.4th 679].) 1397 [14 Cal.Rptr.2d court, to the Knight
According
term
of risk”
“assumption
applies
to two
“(1)
different situations:
those
instances which the
risk doctrine embodies a legal conclusion that there
‘no duty’
part
of the defendant to
protect
risk—the
particular
category
of assumption of risk that the legal commentators
generally refer
as
*6
‘primary
(2)
of
risk’—and
in which
those instances
the defend
ant does owe
duty
of care to the
but the
plaintiff
knowingly
plaintiff
encounters a
of
risk
caused
the
injury
defendant’s
of the duty—
breach
”
what most commentators have termed
of risk.’
‘secondary assumption
Thus,
(Knight, supra,
308.)
3 Cal.4th at p.
of
bars
primary assumption
risk
liability
defendant’s
to the plaintiff for
because the
has no
injury
defendant
eliminate,
from,
to
legal duty
or
the
protect
the risks.
plaintiff
rule,”
on,
“As a general
Knight
the
court went
have duty
“persons
others,
due
to use
care to avoid
injury
and
be held
if their
may
liable
Code,
Thus,
injures
careless conduct
person. (See
1714.)
another
Civ.
§
example, a
owner
property
ordinarily is
to use due care to eliminate
required
dangerous
(See,
conditions on his
her
or
e.g., Rowland v. Christian
property.
561,
496].) In
(1968)
32 A.L.R.3d
But even governs rule recreational in sake of Assuming still erred for the granting a summary judgment. (itself a dubious dancing that is an risk argument falling inherent of social they it when proposition), does not follow have no duty that defendants increase the risk floor. by adding a substance to falling slippery risk, Plaintiff that even if argues this case falls under primary assumption the defendants should be held liable the risk they beyond because increased in that inherent Plaintiff activity. contends: “Here defendants] [the floor, increased by the risk putting substance slippery on it sweeping up, giving the false but so doing negli impression safety, floor, gently so that it left some of the not substance apparent to when she began We dancing.” agree.
court warned: “Although defendants have elimi generally legal duty no to (or itself, nate a protect plaintiff against) risks inherent it well is established that defendants do have a use generally duty to due care not to increase the a risks to over and participant above those inherent the sport. Thus, although run, a ski resort has duty no to remove from ski it moguls safe, clearly does have a duty to use due care to maintain its towropes working condition so as not to skiers to an expose increased risk of harm. risk, The cases establish that the latter ski type posed by a resort’s negligence, (inherent is clearly not a risk in the sport) that is assumed by (3 participant.” 315-316.) Cal.4th at pp. that is
Assuming
falling
a risk inherent
dancing
(say
tripping
feet of one’s partner
by losing
due
one’s balance
to the nature of
the steps required), the dance hall operators and
still
owners
have
duty
maintain the dance
a safe and useable condition.
breach that
They
duty by adding a substance
floor which makes it too
and thus
slippery
all,
increases the dancers’ risk of harm by falling. After
the nature of
recreational
is not altered if
dancing
the owners do not spread Ivory Snow
Flakes on the floor. Consequently, falling on a dance floor because the
operator negligently placed a slippery substance on the floor
is not
“clearly
risk (inherent
in the sport) that is assumed
aby participant.” (
It is no answer say inherently dangerous because some dancers have been known to injure themselves The same could be falling. said of driving a vehicle or virtually any activity. human Once a defendant *8 330 care,
has a of is not duty precluded recovery simply breached supra, (.Knight, because she chose to encounter a known risk of harm. driver an is aware that “Although Cal.4th at of automobile p. every and that inherent the act of driving activity is a hazardous potentially of driving he will driving injured by negligent risk that or she be another, ‘im- drive not thereby who chooses to does person voluntarily another, has such consent’ to nor pliedly being injured by negligence use due their to duty excused’ others from person ‘impliedly performing Instead, if he expects care for the driver’s the driver safety. reasonably i.e., other negligence, or she is another’s breach injured care, for due the driver will entitled to duty compensation to use be person’s 311-312.) In breached (Id. his or her at this case the defendants injuries.” pp. the floor of care to the dancers substance on duty by spreading slippery attached increasing falling. may the risk of Whatever fault be thereby floor, as a that fault does not operate slippery failed to establish as complete recovery. bar to Because defendants matter of law that none of asserted causes of action can plaintiff’s prevail, were not they judgment. entitled to summary
Disposition The is reversed and the remanded the trial with cause court directions to enter a new and different order defendants’ motions for denying summary judgment. Plaintiff shall recover her costs on appeal.
Blease, J.,P. Acting concurred.
NICHOLSON, I respectfullydissent. J.
In falls my which the opinion, type activity plaintiff engaged within the Jewett range Knight activities covered analysis (1992) 3 Cal.4th While Cal.Rptr.2d 696]. involves an activity traditionally considered a the distinction be- “sport,” event, tween what is or is not a the determination of sport is unclear. any whether of risk on whether the does not primary assumption applies hinge was a of the existence and particular activity sport. question scope “[T]he duty legal a defendant’s of care is a on the nature question depends and on the to the activity general relationship question parties’ added.) (Id. in original, .” first italics latter italics activity, . . in which here was activity plaintiff voluntarily engaged partici- A which a substance is on the floor. slippery spread in a dance pation at the commonly spread intentionally the floor dances substance *9 make the floor On slippery thereby enhance and off activity. through dance, because, the evening of each the floor was swept evidently, the first Thus, did not remove sweeping all the substance. just was not activity it dancing; was dancing on slippery floor.
That the did not like the organizers fact the substance spread Likewise, on floor is beside the point. alleged perception slippery substance had been is swept up irrelevant because “the . duty approach . . does not depend particular plaintiff’s subjective knowledge appre- ciation (Knight, supra, potential risk.” 3 Cal.4th Ford
The lead v. Gouin opinion 3 Cal.4th 345 [11 724], Cal.Rptr.2d impose the courts should not explains liability which “might well on have deleterious effect the nature generally . . . .” here Imposing fall liability plaintiff’s slip would effectively spell discontinuation dancing, leaving floor slippery only more docile forms dancing. bans majority effectively slippery dancing by finding a duty to is breached when participant the dance hall operators and owners add a slippery substance to the floor. This akin forcing ski resorts to remove all moguls by imposing ski liability injuries resorts for caused moguls, a judicial imposition specifically 315-316, (3 disapproves. 318-319.) Cal.4th at pp.
I would find the plaintiff made a primary assumption risk by partici- pating dancing on a slippery floor. I would affirm Accordingly, favor of the defendants.