Peart v. Ferro

POLLAK, J.

I concur in the majority opinion. I write separately only to emphasize the anomaly of the result we reach. Under the plurality opinion in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight), the conclusion that plaintiff’s claim is barred by primary assumption of the risk rests upon the determination that defendants’ conduct created only risks that are inherent in the recreational operation of a Sea-Doo which, as a matter of law, defendants had no duty to avoid. Despite the enactment of legislation imposing a duty upon persons operating a personal watercraft not to do so “at a rate of speed and proximity to another vessel so that either operator is required to swerve at the last minute to avoid collision” (Harb. & Nav. Code, § 655.7, subd. (c)), we hold, in effect, that the risks created by conduct in violation of this statute are inherent in the recreational operation of a Sea-Doo, and that one who violates this statute was under no duty to refrain from doing so. Putting aside the anomaly of saying that one has no *84 duty to comply with a duty prescribed by statute (which may be attributed to the manner in which the assumption of risk doctrine was articulated by the Knight plurality), what is more disconcerting is the conclusion that violations of the statute are “inherent in the sport itself’ ( Knight, supra, 3 Cal.4th at p. 315 ), for which reason such violations can give rise to no civil liability. In determining what is “inherent” and acceptable conduct in a sporting activity, one would suppose that the courts would insist on compliance with the law. In determining what conduct is “totally outside the range of the ordinary activity involved in the sport” (id. at pp. 320-321), one would suppose that conduct that a statute prohibits would not be accepted by the courts as ordinary and therefore immune from civil liability.

Nonetheless, despite the “divergent pronouncements of the California Supreme Court in Ford [v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 ]], Knight, supra, 3 Cal.4th 296 , and Cheong [v. Antablin (1997) 16 Cal.4th 1063 [ 68 Cal.Rptr.2d 859 , 946 P.2d 817 ]] concerning the questions of duty and assumption of risk in a sports setting” (Distefano v. Forester (2001) 85 Cal.App.4th 1249, 1267 [ 102 Cal.Rptr.2d 813 ]), and the Supreme Court’s failure thus far to “conclusively determine^ whether or not a violation of law can displace the primary assumption of risk doctrine” (Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1225 [ 130 Cal.Rptr.2d 198 ]), the appellate courts have adopted the rule articulated in the majority opinion. “[T]he enactment of statutes such as [Harbors and Navigations Code] section 655, subdivision (a), and section 655.7, subdivision (c), should not be construed to abrogate the doctrine of primary assumption of risk unless the language of the statute explicitly demonstrates a ‘clear intent’ to do so.” (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1575 [ 2 Cal.Rptr.3d 883 ], citing Cheong v. Antablin, supra, 16 Cal.4th at p. 1069 , Moser v. Ratinoff, supra, 105 Cal.App.4th at p. 1226 , & Distefano v. Forester, supra, 85 Cal.App.4th at p. 1274 .) Despite my misgivings concerning the rule that has emerged, I believe that any attempt by an. intermediate appellate court to rearticulate, much less revise, the governing rules at this time would simply inject additional confusion into this area of the law. If these principles are to be restated, it is for the Supreme Court or the Legislature to do so.

A petition for a rehearing was denied June 22, 2004, and appellants’ petition for review by the Supreme Court was denied September 1, 2004. Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.