The Knight Rule of of Assumption of Risk

In Knight v. Jewett (1992) 3 Cal.4th 296 and subsequent cases, the California Supreme Court has stated that the doctrine of primary assumption of risk severely limits the tort liability of a participant in sports activities for injuries sustained by a coparticipant. Generally, a sports participant has a duty of care to a coparticipant only to refrain from intentional or certain reckless behavior. A participant breaches a duty of care only if he intentionally injures the coparticipant, or injures him by engaging in conduct ". . . 'that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.' " (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 995-996 (Kahn); Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068 (Cheong); Knight, supra, 3 Cal.4th at p. 320.) Knight v. Jewett stated this rule in a three-Justice plurality opinion, with the late Justice Mosk providing the fourth vote in a separate opinion which concurred generally with the plurality. (Knight, supra, 3 Cal.4th at pp. 299, 321; Knight, supra, at p. 321 conc. & dis. opn. of Mosk, J..) For some time there was some debate over whether the rule of Knight commanded a majority of the court. (Compare Cheong, supra, 16 Cal.4th at p. 1067 majority opn. with Cheong, supra, at p. 1075 conc. opn. of Kennard, J.; see, e.g., Ford v. Gouin (1992) 3 Cal.4th 339, 351 conc. opn. of Kennard, J., in companion case to Knight; Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632, fn. 3 (Staten); Davis v. Gaschler (1992) 11 Cal.App.4th 1392, 1397.) But Cheong commanded a majority of the court (16 Cal.4th at pp. 1063, 1072), and in any case Kahn reaffirms and restates the Knight rule in a majority opinion signed by five Justices. (Kahn, supra, 31 Cal.4th at pp. 995-996, 1018.) Kahn applied the Knight rule, involving coparticipants, to the analogous context of athletic coach and student. But there is another aspect to the Knight rule. The Supreme Court, while stating that the duty of care is based on intentional conduct and recklessness, has also spoken in terms of a participant's duty of due care to a coparticipant not to increase the risk beyond those risks inherent in the sport. (Cheong, supra, 16 Cal.4th at p. 1068; Knight, supra, 3 Cal.4th at pp. 315-316.) Of course, "due care" normally bespeaks a negligence analysis. (See Cheong, supra, 16 Cal.4th at pp. 1078-1079 conc. opn. of Chin, J.; see also Prosser & Keeton, Torts (5th ed. 1984) 31, p. 169.) For instance, at the outset of its discussion of the new rule of assumption of risk it was about to develop, Knight cites Civil Code section 1714-which declares that everyone is responsible for the results of their willful acts or injuries caused by their failure to exercise ordinary care. Knight cites the statute for the proposition that "persons have a duty to use due care to avoid an injury to others, and may be held liable if their careless conduct injures another person." (Knight, supra, 3 Cal.4th at p. 315.) This is the language of negligence. Recklessness requires an intentional act so unreasonable or dangerous that the actor knows, or should now, it is highly probable to cause harm. The act is often committed with conscious indifference to its consequences. (See Kahn, supra, 31 Cal.4th at pp. 1018-1019 conc. opn. of Werdegar, J.; Givens v. Southern Pacific Co. (1961) 194 Cal. App. 2d 39, 43-44, 14 Cal. Rptr. 736; Rest.2d Torts, 500, com. a, pp. 587-588, com. g, p. 590.) Knight continues in a negligence vein: "Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, 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, supra, 3 Cal.4th at pp. 315-316.) As an example, and right after the language we have just quoted, Knight specifically referred to two hypothetical instances of negligence by the operator of a ski resort-the failure to remove moguls from a ski run, and the failure to maintain tow ropes in a safe working condition. Liability for the former instance of negligence was barred by assumption of risk, because the risk of hitting a mogul on a ski slope was inherent in the sport. Liability for the latter instance of negligence was not barred by assumption of risk, because the risk of being injured due to an unsafe tow rope was not inherent in the sport. Absent from this discussion is any mention of recklessness. (Knight, supra, 3 Cal.4th at p. 316.)