”All-or-Nothing” Rule of Contributory Negligence

In Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, the California Supreme Court abrogated the common law "all-or-nothing" rule of contributory negligence in favor of a more equitable system of comparative fault. (Id. at pp. 812-813.)

Thereafter, however, consistent application of the assumption of the risk doctrine proved difficult. (Knight v. Jewett (1992) 3 Cal.4th 296, 306-307.)

In Knight, a plurality of our Supreme Court clarified the doctrine by distinguishing "between (1) those instances in which the assumption of risk doctrine embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk-the category of assumption of risk that the legal commentators generally refer to as 'primary assumption of risk'-and (2) those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty-what most commentators have termed 'secondary assumption of risk.'" (Id. at p. 308.)

Determining whether a defendant owes a duty of care to protect the plaintiff from a particular risk depends on the nature of the activity undertaken and the relationship of the parties to that activitya-an analysis that is independent of whether the plaintiff acted reasonably while confronting the particular risk. (Knight, supra, 3 Cal.4th at p. 309.)

As one court has stated, "Knight makes it clear . . . 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." (Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 655.)

A majority of our Supreme Court has since embraced the analytical approach to primary assumption of the risk articulated in Knight. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, citng Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004-1005 and Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067-1068.)