Supreme Court of California Justia
Citation 42 Cal. 4th 482, 165 P.3d 581, 64 Cal. Rptr. 3d 803
Shin v. Ahn

Filed 8/30/07

IN THE SUPREME COURT OF CALIFORNIA

JOHNNY SHIN,
Plaintiff and Respondent,
S146114
v.
Ct.App. 2/4 B184638
JACK AHN,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. SC080477

In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), we considered the duty
of care that should govern the liability of sports participants. We recognized that
careless conduct by coparticipants is an inherent risk in many sports, and that
holding participants liable for resulting injuries would discourage vigorous
competition. Accordingly, those involved in a sporting activity do not have a duty
to reduce the risk of harm that is inherent in the sport itself. They do, however,
have a duty not to increase that inherent risk. (See Avila v. Citrus Community
College Dist. (2006) 38 Cal.4th 148, 162 & 166.) Thus, sports participants have a
limited duty of care to their coparticipants, breached only if they intentionally
injure them or “engage[] in conduct that is so reckless as to be totally outside the
range of the ordinary activity involved in the sport.” (Knight, at p. 320, fn.
omitted.) This application of the primary assumption of risk doctrine recognizes
that by choosing to participate, individuals assume that level of risk inherent in the
sport.
This case represents the next generation of our Knight jurisprudence.
Knight, supra, 3 Cal.4th 296, involved touch football. We expressly left open the
question whether the primary assumption of risk doctrine should apply to
1


noncontact sports, such as golf. (Id. at p. 320, fn. 7.) We address that question
here. We hold that the primary assumption of risk doctrine does apply to golf and
that being struck by a carelessly hit ball is an inherent risk of the sport. As we
explain, whether defendant breached the limited duty of care he owed other
golfers by engaging in conduct that was “so reckless as to be totally outside the
range of the ordinary activity involved in [golf]” (id. at p. 320) depends on
resolution of disputed material facts. Thus, defendant’s summary judgment
motion was properly denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff and defendant were playing golf with Jeffrey Frost at the Rancho
Park Golf Course in Los Angeles. Defendant, the first of the threesome to
complete the 12th hole, went to the 13th tee box.1 Plaintiff and Frost then finished
putting and followed him. Frost took the cart path to the 13th tee box, which
placed him perpendicular to, or slightly behind, defendant and to his right.
Plaintiff took a shortcut, which placed him in front of defendant and to his left.
Plaintiff stopped there to get a bottle of water out of his golf bag and to check his
cell phone for messages. He did so even though he knew (1) that he was in front of
the tee box, (2) that defendant was preparing to tee off, and (3) that he should
stand behind a player who was teeing off. Defendant inadvertently “pulled”2 his

1
A tee box, or “teeing ground,” is the starting place from which a hole is
played. (United States Golf Association (USGA), The Rules of Golf (Jan. 1,
2006) § 2, Definitions, p. 15.) Hitting a shot from the tee box is called “teeing
off.” (‹http://www.worldgolf.com/wglibrary/reference/dictionary/tpage.html› [as
of Aug. 30, 2007].)
2
Defendant is right-handed. When a right-handed golfer “pulls” a shot the
ball goes to the left of the target. The converse applies to left-handed players.
(‹http://www.worldgolf.com/wglibrary/reference/dictionary/ppage.html› [as of
Aug. 30, 2007].)
2


tee shot to the left, hitting plaintiff in the temple. When struck, plaintiff was 25 to
35 feet from defendant, at a 40 to 45 degree angle from the intended path of the
ball. Plaintiff claims his injuries were “disabling, serious, and permanent . . . .”
The parties dispute whether defendant knew where plaintiff was standing
when he teed off. Plaintiff alleged that he and defendant made eye contact before
defendant hit his shot. However, his accounts of just when that eye contact
occurred were inconsistent. In his deposition, plaintiff testified that “we made eye
contact as I was cutting up the hilltoward the 13th tee box. (Italics added.) On
the other hand, in his declaration, plaintiff stated that he made eye contact with
defendant after he reached the location where he was struck. “[P]rior to anyone
teeing off on the 13th hole, I made eye contact with [d]efendant Ahn as he saw me
standing in front of him in close proximity to his left.”
In his declaration, defendant stated: “During the practice swing I looked to
see if the area directly ahead of me where I was aiming was clear. I did not see
anyone. I then stepped forward and focused on the golf ball for 15 to 20 seconds
while settling into my stance and then I hit the ball.”3 In his deposition, defendant
testified he did not know where plaintiff was, either when he took his practice
swing or when he actually teed off.
In his declaration, plaintiff’s expert stated that golf etiquette requires that a
player ensure that no one is in a position to be struck when he or she hits the ball.
(See USGA, The Rules of Golf, supra, § 1, Etiquette, p. 1.) If defendant knew
plaintiff was in jeopardy, he should have shouted a warning before teeing off.
(Ibid.)

3
Generally, in final preparation for hitting a stroke a golfer focuses his or her
attention on the ball and does so until he or she has hit the shot.
3


When plaintiff sued for negligence, defendant sought summary judgment,
relying on the primary assumption of risk doctrine. The trial court initially agreed
that the doctrine applied, found no triable issue of material fact, and granted
summary judgment. However, the trial court later reversed itself, concluding that
triable issues remained.
The Court of Appeal affirmed, holding that the primary assumption of risk
doctrine did not apply. This holding was contrary to that in Dilger v. Moyles
(1997) 54 Cal.App.4th 1452 (Dilger), in which a different district of the Court of
Appeal held that being struck by a ball is a risk inherent in golf and that the
primary assumption of risk doctrine applied to the case of a defendant whose
errant shot struck another golfer playing a different hole. The Court of Appeal in
this case distinguished Dilger on the ground that the golfer whose ball struck the
plaintiff in that case was playing in a different group. Here, plaintiff and
defendant were playing together. The Court of Appeal applied general negligence
principles and concluded that defendant breached a general duty of care owed to a
member of his own playing group by failing to ascertain where he was before
teeing off. Because it also determined that plaintiff’s conduct raised issues of
comparative negligence, it remanded the matter for trial on apportionment of fault.
We reject the duty analysis of the Court of Appeal and conclude that the
primary assumption of risk doctrine regulates the duty a golfer owes both to
playing partners and to other golfers on the course. Defendant’s summary
judgment motion was, however, properly denied. Material questions of fact
remain bearing on whether defendant breached his limited duty of care to plaintiff
by engaging in conduct that was so reckless as to be totally outside the range of
the ordinary activity involved in golf. (See Knight, supra, 3 Cal.4th at p. 320.)
4
II. DISCUSSION
Generally, one owes a duty of ordinary care not to cause an unreasonable
risk of harm to others. (Civ. Code, § 1714, subd. (a); Rowland v. Christian (1968)
69 Cal.2d 108, 112.) The existence of a duty is not an immutable fact of nature,
but rather an expression of policy considerations providing legal protection.
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472.) Thus, the existence
and scope of a defendant’s duty is a question for the court’s resolution. (Kahn v.
East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004 (Kahn).) When a
sports participant is injured, the considerations of policy and duty necessarily
become intertwined with the question of whether the injured person can be said to
have assumed the risk. (Avila, supra, 38 Cal.4th at p. 161.)
California’s abandonment of the doctrine of contributory negligence in
favor of comparative negligence (Li v. Yellow Cab (1975) 13 Cal. 3d 804 (Li)) led
this court to revisit the assumption of risk doctrine in Knight, supra, 3 Cal.4th 296.
A.
Knight and its progeny in this court
In Knight, supra, 3 Cal.4th 296, the plurality noted that there are two types
of assumption of risk: primary and secondary. (Id. at pp. 308-309 (plur. opn. of
George, J.).) Under the primary assumption of risk doctrine, the defendant owes
no duty to protect a plaintiff from particular harms arising from ordinary, or simple
negligence. (Ibid.) In a sports context, the doctrine bars liability because the
plaintiff is said to have assumed the particular risks inherent in a sport by choosing
to participate. (Id. at pp. 315-316.) Thus, “a court need not ask what risks a
particular plaintiff subjectively knew of and chose to encounter, but instead must
evaluate the fundamental nature of the sport and the defendant’s role in or
relationship to that sport in order to determine whether the defendant owes a duty
5
to protect a plaintiff from the particular risk of harm. ([Knight, supra, 3 Cal.4th]
at pp. 313, 315-317.)” (Avila, supra, 38 Cal.4th at p. 161.)
The Knight court used baseball as an example. In baseball, a batter is not
supposed to carelessly throw the bat after getting a hit and starting to run to first
base. However, the primary assumption of risk doctrine recognizes that vigorous
bat deployment is an integral part of the sport and a risk players assume when they
choose to participate. Especially in the heat of competition, and in an effort to get
to first base quickly, a batter may be careless in freeing himself or herself from the
bat’s encumbrance. Thus, under the doctrine, a batter does not have a duty to
another player to avoid carelessly throwing the bat after getting a hit.
In Knight, supra, 3 Cal.4th 296, we stressed the chilling effect that would
flow from imposing liability on touch football players for ordinary careless
conduct. “[E]ven when a participant’s conduct violates a rule of the game and
may subject the violator to internal sanctions prescribed by the sport
itself, imposition of legal liability for such conduct might well alter fundamentally
the nature of the sport by deterring participants from vigorously engaging in
activity . . . .” (Id. at pp. 318-319, italics omitted.) Accordingly, we concluded
that coparticipants’ limited duty of care is to refrain from intentionally injuring
one another or engaging in conduct that is “so reckless as to be totally outside the
range of the ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
A majority of this court has since extended Knight’s application of the
primary assumption of risk doctrine to other sports. (See Avila, supra, 38 Cal.4th
at p. 161; Kahn, supra, 31 Cal.4th at pp. 1004-1005; Cheong v. Antablin (1997) 16
Cal.4th 1063, 1067-1068 (Cheong).)
Cheong, supra, 16 Cal.4th 1063, involved skiing. One skier sued another
for injuries he suffered when the other skier turned and unintentionally ran into
6
him. We concluded that, “under the applicable common law principles, a skier
owes a duty to fellow skiers not to injure them intentionally or to act recklessly,
but a skier may not sue another for simple negligence . . . .” (Id. at p. 1066.)
Because there was no evidence that the defendant acted recklessly or intentionally
injured the plaintiff, we concluded that the defendant’s motion for summary
judgment was properly granted. (Ibid.)
In Kahn, supra, 31 Cal.4th 990, the plaintiff was a 14-year-old novice on a
school swim team. She broke her neck during a meet when she executed a
practice dive into a shallow racing pool located on school property. She sued the
school district, alleging that the injury was caused in part by the failure of her
coach, a district employee, to give her any instruction in how to safely dive into a
shallow pool. She also sued the coach as an individual for failing to adequately
supervise her and for insisting that she dive or risk dismissal. (Id. at p. 995.)
We applied the primary assumption of risk doctrine based on the coach’s
relationship to the sport. Although, the individual defendant was the swimmer’s
coach, rather than an active competitor, he had a direct relationship to the
competition. “[T]he relationship of a sports instructor or coach to a student or
athlete is different from the relationship between coparticipants in a sport. But
because a significant part of an instructor’s or coach’s role is to challenge or
‘push’ a student or athlete to advance in his or her skill level and to undertake
more difficult tasks, and because the fulfillment of such a role could be improperly
chilled by too stringent a standard of potential legal liability, we conclude that the
same general standard should apply in cases in which an instructor’s alleged
liability rests primarily on a claim that he or she challenged the player to perform
beyond his or her capacity or failed to provide adequate instruction or supervision
before directing or permitting a student to perform a particular maneuver that has
7
resulted in injury to the student. A sports instructor may be found to have
breached a duty of care to a student or athlete only if the instructor intentionally
injures the student or engages in conduct that is reckless in the sense that it is
‘totally outside the range of the ordinary activity’ [citation] involved in teaching or
coaching the sport.” (Kahn, supra, 31 Cal.4th at p. 996.)
Applying that standard, we concluded the defendants’ summary judgment
motion was granted in error. We noted “evidence of defendant coach’s failure to
provide plaintiff with training in shallow-water diving, his awareness of plaintiff’s
intense fear of diving into shallow water, his conduct in lulling plaintiff into a
false sense of security by promising that she would not be required to dive at
competitions, his last-minute breach of this promise in the heat of a competition,
and his threat to remove her from competition or at least from the meet if she
refused to dive. Plaintiff’s evidence supports the conclusion that the maneuver of
diving into a shallow racing pool, if not done correctly, poses a significant risk of
extremely serious injury, and that there is a well-established mode of instruction
for teaching a student to perform this maneuver safely. The declarations before
the trial court raise a disputed issue of fact as to whether defendant coach provided
any instruction at all to plaintiff with regard to the safe performance of such a
maneuver, as well as to the existence and nature of the coach’s promises and
threats. Under these circumstances, the question whether the coach’s conduct was
reckless in that it fell totally outside the range of ordinary activity involved in
teaching or coaching this sport cannot properly be resolved on summary
judgment.” (Kahn, supra, 31 Cal.4th at pp. 996-997.)
Avila, supra, 38 Cal.4th 148, involved intercollegiate baseball. A pitcher
on the Rio Hondo Community College team (Rio Hondo) hit a batter on the Citrus
Community College team (Citrus). The next inning the Citrus pitcher allegedly
8
retaliated by hitting a Rio Hondo batter with a “beanball.” The Rio Hondo player
sued the Citrus Community College District for negligence. We held the suit was
barred by the primary assumption of risk doctrine.4 It is against the rules of
baseball to intentionally throw at a batter. (Id. at p. 165.) Nevertheless, “being
intentionally thrown at is a fundamental part and inherent risk of the sport of
baseball. It is not the function of tort law to police such conduct.” (Ibid., fn.
omitted.)
Plaintiff urges us to repudiate the primary assumption of risk doctrine. He
relies upon arguments made against it by the authors of the separate opinions in
Knight, supra, 3 Cal.4th 296, 321-338. Continuing to find those arguments
unpersuasive, we reaffirm the doctrine, as we did in Cheong, supra, 16 Cal.4th
1063, 1067, Kahn, supra, 31 Cal.4th 990, 1005, footnote 2, and Avila, supra, 38
Cal.4th 148, 160-165.
B.
Court of Appeal cases applying Knight to golf
In Knight, supra, 3 Cal.4th 296, we expressly left open the question
whether the primary assumption of risk doctrine should be applied to sports like
golf. (Id. at p. 320, fn. 7.) Subsequently, Courts of Appeal have grappled with the
issue.
As noted, in Dilger, supra, 54 Cal.App.4th 1452, the plaintiff was playing
one hole when she was struck by a ball hit from another. Dilger sued the other
golfer, in whose favor the trial court entered summary judgment.
The Court of Appeal affirmed, holding that the primary assumption of risk
doctrine applied. “[T]he court’s reasoning [in Knight, supra, 3 Cal.4th 296,] in

4
We also held that Government Code section 831.7’s immunity protection
does not extend to injuries sustained during supervised school sports. (Avila,
supra,
38 Cal.4th at pp. 154-160.)
9


limiting active sports participants’ liability applies equally as well to the sport of
golf.
“While golf may not be as physically demanding as . . . basketball or
football, risk is nonetheless inherent in the sport. Hitting a golf ball at a high rate
of speed involves the very real possibility that the ball will take flight in an
unintended direction. If every ball behaved as the golfer wished, there would be
little ‘sport’ in the sport of golf. That shots go awry is a risk that all golfers, even
the professionals, assume when they play.
“Holding participants liable for missed hits would only encourage lawsuits
and deter players from enjoying the sport. Golf offers many healthful advantages
to both the golfer and the community. The physical exercise in the fresh air with
the smell of the pines and eucalyptus renews the spirit and refreshes the body. The
sport offers an opportunity for recreation with friends and the chance to meet other
citizens with like interests. A foursome can be a very social event, relieving each
golfer of the stresses of business and everyday urban life. Neighborhoods benefit
by the scenic green belts golf brings to their communities, and wild life enjoy and
flourish in a friendly habitat. Social policy dictates that the law should not
discourage participation in such an activity whose benefits to the individual player
and to the community at large are so great.” (Dilger, supra, 54 Cal.App.4th at pp.
1454-1455, fn. omitted.)
In American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, a
golfer’s shot ricocheted off a wooden yardage marker5 and injured his companion.

5
Golfers initially hit from the tee and the goal of the first shot is generally
maximum distance. Subsequent shots require the gauging of distances. The
desired distance influences what club the golfer selects and how the swing is
executed. Visible yardage markers are placed to indicate the distance to the green.
10


The companion sued the golf course for negligent design and placement of the
marker. The Court of Appeal, relying upon Dilger, supra, 54 Cal.App.4th 1452,
applied the primary assumption of risk doctrine. (American Golf Corp., at p. 39.)
It granted the golf course’s petition for writ of mandate directing the trial court to
grant its motion for summary judgment. (Id. at p. 33.) “We hold golf is an active
sport, errant shots are an inherent risk of golf, yardage markers are an integral part
of the sport, and the golf course as recreation provider did not increase the risk of
injury by its design and placement of the yardage marker.” (Ibid.)
The court in Hemady v. Long Beach Unified School Dist. (2006) 143
Cal.App.4th 566 considered the question of inherent risk in a different context.
There, one student inadvertently hit another with a golf club during a seventh
grade physical education class. The injured student sued the school district and
the instructor for negligence. The trial court granted the defendants’ motion for
summary judgment. Applying the primary assumption of risk doctrine, it
concluded that plaintiff failed to raise a triable issue of material fact as to whether
the defendants’ conduct was extraordinarily reckless within the meaning of
Knight, supra, 3 Cal.4th at page 320. (Hemady, at p. 572.) The Court of Appeal
reversed. Noting that the primary assumption of the risk doctrine bars liability for
those injuries arising from the particular risks that are inherent in a sport (Knight,
supra, 3 Cal.4th at pp. 315-316), the Court of Appeal concluded that being hit on
the head by a club is not an inherent risk in golf. Thus a conventional duty
analysis was called for. (Hemady, at p. 576.)

C.
The Court of Appeal’s Inappropriate Limitation of Dilger

The Court of Appeal here concluded that golf is an active sport in which
participants run the risk of being hit by an errant ball. Nevertheless, it declined to
apply the primary assumption of risk doctrine. It distinguished Dilger, supra, 54
11


Cal.App.4th 1452, on the ground that the plaintiff there was struck by a ball hit
from another hole, whereas Shin was struck by a ball hit by a member of his own
threesome.
In support of its conclusion, the Court of Appeal reached back to 1974 and
outside California authority to the Louisiana case of Allen v. Pinewood Country
Club, Inc. (La.Ct.App. 1974) 292 So.2d 786 (Allen v. Pinewood).
In Allen v. Pinewood., supra, 292 So.2d 786, the plaintiff and the defendant
were golfers in the same foursome. After all of the players hit their tee shots, they
walked to their respective balls. The defendant had “topped” his tee shot, landing
far behind the plaintiff. The defendant shouted “fore” and hit his second shot.
The plaintiff, hearing the shout, turned around and was struck in the face by the
ball. (Id. at p. 788.)
The Louisiana court described the pivotal issue as “whether plaintiff was
guilty of negligence barring his recovery by proceeding ahead of a member of
plaintiff’s own party whom plaintiff knew, or had reason to know, would [hit his
shot] next.” (Allen v. Pinewood, supra, 292 So.2d at p. 789.) The court held the
defendant was liable under a proximate cause analysis. If the plaintiff was
negligent in proceeding ahead of the defendant, his negligence was only a remote
cause of his injury, whereas the defendant’s negligence, in making his shot
without ensuring the plaintiff had heard his warning, was the proximate cause.
(Id. at pp. 789-790.)
Allen v. Pinewood, supra, 292 So.2d 786, was a slender reed upon which to
lean. The intermediate appellate court in Louisiana decided the case almost two
decades before this court issued its opinion in Knight, supra, 3 Cal.4th 296. Thus,
it applied a conventional negligence analysis. It did not consider the primary
assumption of risk doctrine or whether that doctrine should apply to golf.
12
Certainly it did not address whether, in applying the doctrine to golf, a distinction
should be drawn among defendants based on whether they are members of the
plaintiff’s playing group.
We are not persuaded that a case should turn on whether a defendant is
playing with the plaintiff, or in another group. The question of duty involves the
relationship of the parties to the sport. (Knight, supra, 3 Cal.4th at p. 309.)
Coparticipants have the same relationship to the sport whether they are in the same
playing group or not. This analysis is consistent with our conclusion in Cheong,
supra, 16 Cal.4th 1063. There the parties were not competing against each other.
They were coparticipants, however, because they were both engaged in the same
sport, at the same time, using a common venue. The golfers both here and in
Dilger, supra, 54 Cal.App.4th 1452, were sharing the same course, just as the
skiers in Cheong were using the same ski run.
D.
Sister-state decisions
The first court to apply the reckless disregard or intentional conduct
standard to golf appears to have been the Supreme Court of Ohio in Thompson v.
McNeill (Ohio 1990) 559 N.E.2d 705 (Thompson). (Schick v. Ferolito (N.J. 2001)
767 A.2d 962, 966 (Schick).) In Thompson, at page 706, the defendant “shanked”6
a shot. The plaintiff, a member of the defendant’s foursome, was standing at a 90-
degree angle to the intended path of a ball that struck her. The Ohio Supreme
Court held that “only injuries caused by intentional conduct, or in some instances
reckless misconduct, may give rise to a cause of action [by one golfer against
another].” (Thompson, at p. 706.)

6
“Shanking” a golf shot has been defined as “strik[ing] the ball with the part
of the club head where the heel is joined to the shaft, causing the ball to squirt off
dramatically on an outward path (dead right for right-handed golfers).”
(‹http://www.golfclevelandohio.com/G2003-main.htm› [as of Aug. 30, 2007].)
13


Applying that standard, the Thompson court affirmed a grant of summary
judgment in the defendant’s favor. “Shanking the ball is a foreseeable and not
uncommon occurrence in the game of golf. The same is true of hooking, slicing,
pushing, or pulling a golf shot. We would stress that ‘[i]t is well known that not
every shot played by a golfer goes to the point where he intends it to go. If such
were the case, every player would be perfect and the whole pleasure of the sport
would be lost. It is common knowledge, at least among players, that many bad
shots must result although every stroke is delivered with the best possible intention
and without any negligence whatsoever.’ Benjamin v. Nernberg (1931), 102
Pa.Super. 471, 475-476, 157 A. 10, 11.” (Thompson, supra, 559 N.E.2d at p.
709.)
In Schick, supra, 767 A.2d 962, the New Jersey Supreme Court followed
Thompson, supra, 559 N.E.2d 705, as well as Dilger, supra, 54 Cal.App.4th 1452.
In Schick, at page 963 the defendant hit a second tee shot, or “mulligan,”7 striking
a member of his foursome. The New Jersey Supreme Court applied the reckless
or intentional misconduct standard. We perceive no persuasive reason to apply
an artificial distinction between ‘contact’ and ‘noncontact’ sports. In fact, only a
minority of courts do so. [Citations.]” (Id. at p. 968.) The New Jersey Supreme
Court went on to hold that the trial court erred in granting the defendant’s motion
for summary judgment because the facts would have supported a verdict of
recklessness. The court pointed to “defendant’s own testimony that he perceived
plaintiff to be in the ‘line of fire’ and that he waved plaintiff off in an effort to

7
A “mulligan” is a second shot sometimes permitted in friendly play, but not
allowed under the rules, when a player has mishit his or her first shot.
(‹http://www.worldgolf.com/wglibrary/reference/dictionary/mpage.html› [as of
Aug. 30, 2007].)
14


induce plaintiff to move from his location.” (Id. at p. 970.) Plaintiff did not move.
The defendant did not wait for him to do so and hit his shot anyway. The court
held, “[t]hat scenario presents a set of facts that a jury could find constitutes
reckless conduct because it may reflect a conscious choice of a course of action
with knowledge or reason to know that the action will create serious danger to
others.” (Ibid.)
In Gray v. Giroux (Mass.App.Ct. 2000) 730 N.E.2d 338, the Massachusetts
Appeals Court held that “the wilful, wanton, or reckless standard of conduct, and
not ordinary negligence is the appropriate standard of care in noncontact sports
such as golf.” (Id. at p. 341.) Applying that standard, the appeals court affirmed
the grant of summary judgment in favor of the defendant, a member of the
plaintiff’s playing group. “Here, the undisputed facts demonstrate that the
plaintiff was standing at the edge of the woods on the left side of the fairway about
thirty-five to fifty yards in front of the defendant, whose ball was in the rough on
the same side. Because the hole was a dogleg to the right, and the plaintiff and the
defendant were both on the left side of the fairway, the defendant obviously was
not aiming his shot toward the edge of the woods where the plaintiff was standing;
instead, he was trying to place the ball on the green to the right. Thus, the plaintiff
was not within the intended path of the defendant’s shot. Moreover, it is
undisputed that the defendant did not see the plaintiff before he took his shot. In
these circumstances, the fact that the defendant’s shot did not follow its intended
path does not amount to wilful, wanton, or reckless conduct.” (Ibid., fns. omitted.)
In Allen v. Donath (Tex.App. 1994) 875 S.W.2d 438, the plaintiff was
struck by a “mulligan” hit by a member of his threesome. It was disputed whether
the defendant announced his intention to hit a second ball. The Texas Court of
Appeals, following the Ohio Supreme Court’s decision in Thompson, supra, 559
15
N.E.2d 705, rejected the plaintiff’s argument that the appropriate standard of care
should be dependent on whether the sport in question is a contact sport. “While
the genteel game of golf can hardly be described as a ‘competitive contact sport,’
we believe the reckless and intentional standard is every bit as appropriate to
conduct on the links as it is to conduct on the polo field.” (Allen v. Donath, at p.
440.) The court affirmed the judgment in favor of the defendant on the ground
that the jury was properly instructed on the standard of care. (Ibid.)
In Yoneda v. Tom (Hawaii 2006) 133 P.3d 796, the plaintiff was struck by a
ball hit by a golfer in another group. The plaintiff sued the other golfer as well as
the owner and operator of the golf course. The Hawaii Supreme Court concluded
that the primary assumption of risk doctrine applied to define the defendant
golfer’s duty, relying in part on Knight, supra, 3 Cal.4th 296, and Dilger, supra,
54 Cal.App.4th 1452. (Yoneda, at pp. 804-809.) Upholding a grant of summary
judgment for the defendant golfer, the Hawaii Supreme Court ruled that no one
could have reasonably anticipated that a person in the plaintiff’s location was in
danger of being struck by the defendant’s shot. (Id. at p. 809.)8
E.
Application of the Primary Assumption of Risk Doctrine
The lesson to be drawn from Knight, supra, 3 Cal.4th 296, and its progeny,
as well as the weight of authority in sister states, is that the primary assumption of

8
The Illinois Court of Appeal has charted a different course, adopting the
“contact sport” distinction. In Zurla v. Hydel (Ill.App.Ct. 1997) 681 N.E.2d 148,
the plaintiff was struck by a ball hit by a member of his threesome. The Court of
Appeal concluded that “a golfer injured by a golf ball need only allege and prove
traditional negligence in order to recover damages, rather than wilful and wanton
conduct.” (Id. at p. 152.) It reached that conclusion on the ground that “golf is not
properly characterized as a ‘contact sport’ . . . .” (Ibid.) “Rather, golf is a sport
which is contemplative and careful, with emphasis placed on control and finesse,
rather than speed or raw strength.” (Ibid.)
16


risk doctrine should be applied to golf. Thus, we hold that golfers have a limited
duty of care to other players, breached only if they intentionally injure them or
engage in conduct that is “so reckless as to be totally outside the range of the
ordinary activity involved in the sport.” (Id. at p. 320, fn. omitted.)
The Court of Appeal relied too heavily on one of golf’s rules of etiquette
involving safety. Golf’s first rule of etiquette provides that “[p]layers should
ensure that no one is standing close by or in a position to be hit by the club, the
ball or any stones, pebbles, twigs or the like when they make a stroke or practice
swing.”9 (USGA, The Rules of Golf, supra, § 1, Etiquette, p. 1.) The Court of
concluded that “[t]his duty included the duty to ascertain Shin’s whereabouts
before hitting the ball.”

9
Four of golf’s rules of etiquette involve safety.
“Players should ensure that no one is standing close by or in a position to
be hit by the club, the ball or any stones, pebbles, twigs or the like when they
make a stroke or practice swing.

“Players should not play until the players in front are out of range.
“Players should always alert greenstaff nearby or ahead when they are
about to make a stroke that might endanger them.

“If a player plays a ball in a direction where there is a danger of hitting
someone, he should immediately shout a warning. The traditional word of
warning in such situations is ‘fore.’ ” (USGA, The Rules of Golf, supra, § 1,
Etiquette, p. 1.)
17



Rules of etiquette govern socially acceptable behavior.10 The sanction for a
violation of a rule of etiquette is social disapproval, not legal liability. This is true,
generally, of the violation of the rules of a game. “The cases have recognized that,
[in sports like football or baseball], even when a participant’s conduct violates a
rule of the game and may subject the violator to internal sanctions prescribed by
the sport itself, imposition of legal liability for such conduct might well alter
fundamentally the nature of the sport by deterring participants from vigorously
engaging in activity that falls close to, but on the permissible side of, a prescribed
rule.” (Knight, supra, 3 Cal.4th at pp. 318-319; see Avila, supra, 38 Cal.4th at p.
165.)
F.
Secondary Assumption of Risk
In
Knight, supra, 3 Cal.4th 320, we made clear that in primary assumption
of risk cases the defendant owes no duty to protect a plaintiff from a particular risk
that the plaintiff is construed to have assumed. In the sports context, the plaintiff
is deemed to have assumed those risks inherent in the sport in which plaintiff
chooses to participate. A defendant participating in the same sporting activity
owes no duty to a coparticipating plaintiff to avoid ordinary negligence as to those
risks.

10
(Merriam-Webster Online ‹http://www.m-w.com/cgi-
bin/dictionary?book=Dictionary&va=etiquette ›[as of Aug. 30, 2007].)

The hortatory character of its etiquette rules is made very clear by the
USGA. The USGA explains that these rules are simply “guidelines” as to how the
game “should” be played so that “all players will gain maximum enjoyment from
the game.” (USGA, The Rules of Golf, supra, § 1, Etiquette, p. 1, italics added.)
The use of the term should in the etiquette rules was a considered choice. The
USGA cautions readers that its “Rules book is written in a very precise and
deliberate fashion. You should be aware of and understand the following
differences in word use: [¶] may = optional [¶] should = recommendation [¶]
must = instruction (and penalty if not carried out)” (USGA, The Rules of Golf,
supra, p. i.)
18



As indicated in Li, supra, 13 Cal.3d 804, and clarified in Knight, supra, 3
Cal.4th 320, the secondary assumption of risk doctrine relates to the allocation of
damages, not to the question of duty. The substantial change adopted in Li was to
replace the absolute bar to recovery if a plaintiff’s own negligence contributed to
his or her injury, with a system of comparative fault in which liability was
assigned “in direct proportion to the amount of negligence of each of the parties.”
(Li, at p. 829.) The Li court did not alter the legally accepted concepts of
negligence. (Id. at p. 813 & fn. 6a.)
The
Li court discussed the doctrines of “last clear chance” and “assumption
of risk” as concepts that had operated to ameliorate the harshness of the “all ‘or
nothing’ ” contributory negligence scheme. (Li, supra, 13 Cal.3d 804, 824.)
Because it was replacing that scheme with the comparative negligence approach it
abolished the last clear chance rule. (Id. at p. 829.) Likewise it did away with the
assumption of risk principle “to the extent that it is merely a variant of the former
doctrine of contributory negligence.” (Ibid.) The Li court did not use the terms
“primary” and “secondary” assumption of risk. It did, however, observe that
under the system of comparative negligence, the defense of assumption of risk
would merge into the comparative negligence scheme, to the extent that it had
previously operated as a variant of contributory negligence.
Knight, supra, 3 Cal.4th 296, clarified the manner and degree to which
assumption of risk merged into the comparative negligence scheme. The Knight,
plurality explained that the primary 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.” (Knight, at p. 308.) It is the secondary assumption
of risk principle that was merged into Li’s new comparative negligence approach.
Under this merged approach the analysis proceeds as follows. The first question is
19
whether the defendant has breached a duty to the plaintiff. The duty analysis
depends on the nature of the activity or sport and the parties’ relationship to it.
(Knight, at p. 308.) Once it has been established that a duty has been breached,
however that duty is appropriately defined under the circumstances of the case, the
general principles of comparative fault are applied to assign liability in proportion
to the parties’ respective fault. Thus, primary assumption of risk applies to the
question of duty and secondary assumption of risk applies to the calculation of
damages.
In applying an assumption of risk analysis it is important not to confuse the
question of duty with that of damages. The primary assumption of risk doctrine
operates to limit the duty owed by the defendant. If the defendant is found to have
breached that duty, the question of damages is calculated by taking the plaintiff’s
comparative fault, if any, into account. The primary assumption of risk doctrine
articulates what kind of duty is owed and to whom. Only if a defendant is found to
have breached a duty, does the question of damages arise. In California, tort
damages are calculated under the principles of comparative fault set out in Li,
supra, 13 Cal.3d 804. (Knight, supra, 3 Cal.4th at p. 300.)

G.
Defendant’s summary judgment motion
The remaining issue is whether defendant’s motion for summary judgment
should have been granted.
The rules of review are well established. If no triable issue as to any
material fact exists, the defendant is entitled to a judgment as a matter of law.
(Code Civ. Proc., § 437c, subd. (c); Kahn, supra, 31 Cal.4th at pp. 1002-1003.) In
ruling on the motion, the court must view the evidence in the light most favorable
to the opposing party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
20


843.) We review the record and the determination of the trial court de novo.
(Kahn, at p. 1003; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
Here, summary judgment was properly denied because there are material
questions of fact to be adjudicated.
In
determining
whether
defendant acted recklessly, the trier of fact will
have to consider both the nature of the game and the totality of circumstances
surrounding the shot. In making a golf shot the player focuses on the ball, unlike
other sports in which a player’s focus is divided between the ball and other
players. That is not to say that a golfer may ignore other players before making a
shot. Ordinarily, a golfer should not make a shot without checking to see whether
others are reasonably likely to be struck.11 Once having addressed the ball, a
golfer is not required to break his or her concentration by checking the field again.
Nor must a golfer conduct a head count of the other players in the group before
making a shot.
Many factors will bear on whether a golfer’s conduct was reasonable,
negligent, or reckless. Relevant circumstances may include the golfer’s skill level;
whether topographical undulations, trees, or other impediments obscure his view;
what steps he took to determine whether anyone was within range; and the
distance and angle between a plaintiff and defendant.
Here plaintiff testified at his deposition that he and defendant made eye
contact “as I was cutting up the hill.” He did not make clear, however, how far he
had proceeded up the hill, how far away he was from the defendant, or whether he

11
However, conduct that might be found reckless when engaged in on a
crowded course might be found otherwise if the course is largely deserted.
21


was stationary when the eye contact occurred.12 At his deposition, defendant said
he looked to see if the area “directly ahead” of him was clear. It is not apparent
just how broad or limited that area was. This record is simply too sparse to
support a finding, as a matter of law, that defendant did, or did not, act recklessly.
This will be a question the jury will ultimately resolve based on a more complete
examination of the facts. We do not suggest that cases like this can never be
resolved on summary judgment, only that this record is insufficient to do so.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed. The case is remanded
with directions that litigation should continue under the primary assumption of
risk doctrine.
CORRIGAN, J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

12
In his declaration in opposition to summary judgment, plaintiff said the eye
contact occurred when he was standing at the location where he was struck.
However, a party cannot create an issue of fact by a declaration which contradicts
his prior discovery responses. (Benavidez v. San Jose Police Dept. (1999) 71
Cal.App.4th 853, 860; see also D’Amico v. Board of Medical Examiners (1974) 11
Cal.3d 1, 21-22.)
22


CONCURRING AND DISSENTING OPINION BY KENNARD, J.
Fifteen years ago in Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), a
plurality of this court abandoned the tort doctrine of implied assumption of risk as
a defense to a negligence action in sports cases. Adopted in its place was a rule
eliminating between sports participants any duty to avoid injury-causing
carelessness, the so-called “no-duty-for-sports rule.” In the intervening years, this
rule has found favor with a majority of this court. (See Kahn v. East Side Union
High School Dist. (2003) 31 Cal.4th 990.)
I have disagreed with that rule since its inception in 1992. (See Knight,
supra, 3 Cal.4th at p. 336 (dis. opn. of Kennard, J.).) Just last year, in a dissenting
opinion in Avila v. Citrus Community College District (2006) 38 Cal.4th 148, I said:
“I have repeatedly voiced my disagreement with this court’s adoption of that rule,
which is ‘tearing at the fabric of tort law’ (Cheong v. Antablin (1997) 16 Cal.4th
1063, 1075 (conc. opn. of Kennard, J.)).” (Avila, supra, at p. 169 (dis. opn. of
Kennard, J.).) And I have pointed out that “because the question of what is
‘inherent’ in a sport is amorphous and fact-intensive, it is impossible for trial courts
‘to discern, at an early stage in the proceedings, which risks are inherent in a given
sport.’ (Knight v. Jewett, supra, 3 Cal.4th at p. 337 (dis. opn. of Kennard, J.).)”
(Ibid.)
The Knight plurality limited the no-duty-for-sports rule to active sports,
such as the game of touch football in that case where the plaintiff lost a finger as
the result of rough play by a fellow player. In the words of the Knight plurality:
“[A] participant in an active sport breaches a legal duty of care to other
participants . . . only if the participant intentionally injures another player or
1



engages in conduct that is so reckless as to be totally outside the range of the
ordinary activity involved in the sport.” (Knight, supra, 3 Cal.4th at p. 320, italics
added.) The plurality further observed: “[W]e have no occasion to decide
whether a comparable limited duty of care appropriately should be applied to other
less active sports, such as archery or golf.” (Id. at p. 320, fn. 7.) Today, the
majority expressly extends the Knight rule to one of those “less active sports,”
golf, noting that “[t]his case represents the next generation of [this court’s] Knight
jurisprudence.” (Maj. opn., p. 1.)
I continue my disagreement with the no-duty-for-sports rule, whether
applied to an “active” sport such as touch football or a “less active” one such as
golf. I agree, however, with the majority that this case should be remanded for
trial. But the majority and I differ on what should be decided at trial. The
majority would have the jury decide whether defendant in hitting the golf ball that
struck plaintiff was not merely careless but reckless — that is, whether
defendant’s conduct, in the words of the Knight plurality, was “totally outside the
range of the ordinary activity” involved in the sport (Knight, supra, 3 Cal.4th at
p. 320). Under that approach, with which I disagree, a defendant in a sports injury
case is not liable for negligent conduct falling within the ordinary range of the
particular sport but is liable only for actions falling outside of that range. In
contrast, I would have this case proceed to trial so the jury, applying traditional
principles of tort liability, can decide whether defendant acted negligently and, if
so, whether, under the traditional tort defense of implied assumption of the risk,
plaintiff “truly appreciated and voluntarily consented to the risk” posed by
defendant’s negligent conduct. (Knight, supra, 3 Cal.3d at p. 332 (dis. opn. of
Kennard, J.).)
KENNARD,
J.
2

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Shin v. Ahn
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted
XXX 141 Cal.App.4th 726
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S146114
Date Filed: August 30, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Paul G. Flynn

__________________________________________________________________________________

Attorneys for Appellant:

Barry Bartholomew & Associates, Michael Maguire & Associates and Kathryn Albarian for Defendant and
Appellant.

Horvitz & Levy, Barry R. Levy, Mitchell C. Tilner and Jeremy B. Rosen for Association of California
Insurance Companies, Farmers Insurance Exchange, National Association of Mutual Insurance Companies
and Personal Insurance Federation of California as Amicus Curiae on behalf of Defendant and Appellant.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant
and Appellant.

Duane Morris, John E. Gagan, Jill Haley Penwarden, Michael L. Reitzell and Paul J. Killion for California
Ski Industry Association as Amicus Curiae on behalf of Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Knickerbocker Law Corporation, Richard L. Knickerbocker, Gregory G. Yacoubian; and Michael H.
Silvers for Plaintiff and Respondent.

Law Office of Daniel U. Smith and Daniel U. Smith for Consumer Attorneys of California as Amicus
Curiae.



Counsel who argued in Supreme Court (not intended for publication with opinion):

Kathryn Albarian
Michael Maguire & Associates
701 North Brand Boulevard, Suite 60
Glendale, CA 91203
(818) 543-4000

Jeremy B. Rosen
Horvitz & Levy
15760 Ventura Boulevard, 18th Floor
Encino, CA 91436
(818) 995-0800

Richard L. Knickerbocker
Knickerbocker Law Corporation
233 Wilshire Boulevard, Suite 400
Santa Monica, CA 90401
(310) 917-1006

Daniel U. Smith
Law Office of Daniel U. Smith
Post Office Box 278
Kentfield, CA 94914
(415) 461-5630


Opinion Information
Date:Citation:Docket Number:
Thu, 08/30/200742 Cal. 4th 482, 165 P.3d 581, 64 Cal. Rptr. 3d 803S146114

Parties
1Ahn, Jack (Defendant and Appellant)
Represented by Kathryn Albarian
Mark R. Weiner & Associates
701 N. Brand Boulevard, Suite 600
Glendale, CA

2Shin, Johnny (Plaintiff and Respondent)
Represented by Richard L. Knickerbocker
Knickerbocker Law Corporation, P.C.
233 Wilshire Boulevard, Suite 400
Santa Monica, CA

3Shin, Johnny (Plaintiff and Respondent)
Represented by Michael Henry Silvers
Attorney at Law
11500 W. Olympic Boulevard, Suite 322
Los Angeles, CA

4Shin, Johnny (Plaintiff and Respondent)
Represented by Gregory Gaspar Yacoubian
Knickerbocker Law Corporation, P.C.
233 Wilshire Boulevard, Suite 400
Santa Monica, CA

5Farmers Insurance Exchange (Amicus curiae)
Represented by Jeremy Brooks Rosen
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

6Farmers Insurance Exchange (Amicus curiae)
Represented by Barry R. Levy
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

7Farmers Insurance Exchange (Amicus curiae)
Represented by Mitchell C. Tilner
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

8California Ski Industry Association (Amicus curiae)
Represented by John E. Fagan
Duane Morris, LLP
P.O. Box 7199
Tahoe City, CA

9California Ski Industry Association (Amicus curiae)
Represented by Paul J. Killion
Duane Morris, LLP
One Market, Spear Tower, Suite 2000
San Francisco, CA

10California Ski Industry Association (Amicus curiae)
Represented by Jill Haley Penwarden
Duane Morris, LLP
P.O. Box 7199
Tahoe City, CA

11California Ski Industry Association (Amicus curiae)
Represented by Michael Lane Reitzell
Duane Morris, LLP
P.O. Box 7199
Tahoe City, CA

12Association Of California Insurance Companies (Amicus curiae)
Represented by Barry R. Levy
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

13Association Of California Insurance Companies (Amicus curiae)
Represented by Jeremy Brooks Rosen
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

14Association Of California Insurance Companies (Amicus curiae)
Represented by Mitchell C. Tilner
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

15National Association Of Mutual Insurance Companies (Amicus curiae)
Represented by Barry R. Levy
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

16National Association Of Mutual Insurance Companies (Amicus curiae)
Represented by Jeremy Brooks Rosen
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

17National Association Of Mutual Insurance Companies (Amicus curiae)
Represented by Mitchell C. Tilner
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

18Personal Insurance Federation Of California (Amicus curiae)
Represented by Barry R. Levy
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

19Personal Insurance Federation Of California (Amicus curiae)
Represented by Jeremy Brooks Rosen
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

20Personal Insurance Federation Of California (Amicus curiae)
Represented by Mitchell C. Tilner
Horvitz & Levy, LLP
15760 Ventura Boulevard, Suite 1800
Encino, CA

21Civil Justice Association Of California (Amicus curiae)
Represented by Fred James Hiestand
Attorney at Law
1121 "L" Street, Suite 404
Sacramento, CA

22Consumer Attorneys Of California (Amicus curiae)
Represented by Daniel U. Smith
Attorney at Law
P.O. Box 278
21 Rancheria Road
Kentfield, CA


Opinion Authors
OpinionJustice Carol A. Corrigan
DissentJustice Joyce L. Kennard

Disposition
Aug 30 2007Opinion: Affirmed with directions

Dockets
Aug 25 2006Petition for review filed
  Appellant Jack Ahn Attorney Kathryn Albarian
Aug 31 2006Request for depublication (petition for review pending)
  Jack Ahn, Appellant Kathryn Albarian, Counsel
Aug 31 2006Record requested
  one doghouse.
Sep 14 2006Request for extension of time filed
  Respondent, Johnny Shin 30-day extention of time to file an answer to petition for review Richard Knickerbocker, Esq.,
Sep 14 2006Extension of time granted
  to September 24, 2006, to file answer to petition for review.
Sep 26 2006Answer to petition for review filed
  Johnny Shin, respondent 40.1 Richard L. Knickerbocker, counsel
Oct 20 2006Time extended to grant or deny review
  November 22, 2006.
Oct 25 2006Petition for review granted (civil case)
  Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Oct 25 2006Letter sent to:
  Counsels: re certification of interested entities or persons.
Nov 2 2006Certification of interested entities or persons filed
  appellant Jack Ahn attorney Kathryin Alvarian of Michael, Maguire Associates
Nov 2 2006Certification of interested entities or persons filed
  Johnny Shin, respondent Richard L. Knickerbocker, Counsel
Nov 21 2006Opening brief on the merits filed
  appellant, Jack Ahn
Dec 19 2006Request for extension of time filed
  to January 22, 2007, to file Answer Brief on the Merits.
Jan 2 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the Answer Brief ofn the Merits is extended to and including January 22, 2007.
Jan 23 2007Answer brief on the merits filed
  Johnny Shin, respondent Richard L. Knickerbocker, Counsel (CRC 8.25)
Feb 13 2007Reply brief filed (case fully briefed)
  Appellant Jack Ahn
Feb 28 2007Request for extension of time filed
  to April 14, 2007, Farmers Insurance Exchange to file amicus curiae.
Mar 5 2007Extension of time granted
  On application of Farmers Insurance Exchange and good cause appearing, it is ordered that the time to serve and file the amicus curiae is extended to and including March 21, 2007.
Mar 14 2007Request for extension of time filed
  14 day extension, March 29, 2007, Consumer Attorneys of California.
Mar 14 2007Request for extension of time filed
  to March 30, 2007, to file amicus curiae brief in support of appellant.
Mar 14 2007Received application to file Amicus Curiae Brief
  Califronia Ski Industry Association in support of Appellant Jack Ahn.
Mar 19 2007Extension of time granted
  On application of Consumer Attorneys of California and good cause appearing, it is ordered that the time to serve and file the amicus curiae is extended to and including March 22, 2007.
Mar 19 2007Extension of time granted
  On application of Civil Justice Association of California and good cause appearing, it is ordered that the time to serve and file the amicus curiae is extended to and including March 22, 2007.
Mar 19 2007Permission to file amicus curiae brief granted
  The application of California Ski Industry Association for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty days of filing of the brief.
Mar 19 2007Amicus curiae brief filed
  Califronia Ski Industry Association in support of Appellant Jack Ahn.
Mar 21 2007Received application to file Amicus Curiae Brief
  Association of California Insurance Companies, Farmers Insurance Exchange, National Association of Mutual Insurance Companies and Personal Insurance Federation of California.
Mar 23 2007Received application to file Amicus Curiae Brief
  Civil Justice Association of California in support of appellant.
Mar 23 2007Received application to file Amicus Curiae Brief
  Consumer Attorney of California
Mar 28 2007Permission to file amicus curiae brief granted
  The application of Association of California Insurance Companies, Farmers Insurance Exchange, National Association of Mutual Insurance Companies and Personal Insurance Federation of California for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty (20) days of the filing of the brief.
Mar 28 2007Amicus curiae brief filed
  Association of California Insurance Companies et al., in support of appellant.
Mar 28 2007Permission to file amicus curiae brief granted
  The application of Civil Justice Association of California for permission to file an amicus curiae brief in support of appellant is hereby granted. An answer thereto may be served and filed by any party within twenty (20) days of the filing of the brief.
Mar 28 2007Amicus curiae brief filed
  Civil Justice Association of California in support of appellant.
Mar 28 2007Permission to file amicus curiae brief granted
  The application of Consumer Attorneys of California for permission to file an amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within twenty (20) days of the filing of the brief.
Mar 28 2007Amicus curiae brief filed
  Consumer Attorneys of California
Apr 6 2007Request for extension of time filed
  Johnny Shin, respondent Richard Knickerbocker, Cousel
Apr 9 2007Extension of time granted
  to May 1, 2007, to files thes response to all amicus curiae briefs by respondent.
Apr 13 2007Request for extension of time filed
  by Appellan Jack Ahn to filed answer to amicus curiae briefs [asking to May 1, 2007)
Apr 17 2007Extension of time granted
  On application of appellant and good cause appering, it is ordered that the time to serve and file appellant's response to amicus curiae brief filed by California Consumer Attorneys is hereby extended to and including April 24, 2007.
Apr 24 2007Received:
  Appellant's Answer to Amicus Curiae brief of Consumer Attorneys of California (White cover instead of blue.)
Apr 25 2007Request for extension of time filed
  to May 1, 2007 to file answer to amicus curiae brief. Johnny Shin, respondent Richard Knickerbocker, Counsel
Apr 27 2007Response to amicus curiae brief filed
  with permission. Appellant's Answer to Amicus Curiae brief of Consumer Attorneys of California
Apr 27 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer to all amicus curiae briefs is extended to and including May 1, 2007.
Apr 30 2007Request for extension of time filed
  to May 8, 2007 to file answer to amicus curiae brief. Johnny Shin, respondent Richard Knickerbocker, Counsel
May 2 2007Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer to amicus curiae briefs is extended to and including May 8, 2007.
May 2 2007Case ordered on calendar
  to be argued on Wednesday, June 6, at 1:30 p.m., in Los Angeles
May 9 2007Application filed to:
  divide oral argument time, filed by counsel for appellant Ahn requesting to share 15 minutes of time with counsel for amici curiae Association of California Insurance Companies et al.
May 9 2007Response to amicus curiae brief filed
  response to A/C brief of California Ski Association Johnny Shin, respondent Richard Knickerbocker, counsel (timely per CRC 8.25)
May 9 2007Response to amicus curiae brief filed
  response to A/C brief of Justice Association of California Johnny Shin, respondent Richard Knickerbocker, counsel (timely per CRC 8.25)
May 9 2007Response to amicus curiae brief filed
  response to A/C brief of Association of Calif. Insurance Companies, et al. Johnny Shin, respondent Richard Knickerbocker, counsel (timely per CRC 8.25)
May 14 2007Application filed to:
  divide oral argument time, filed by counsel for respondent Shin requesting to share 10 minutes of time with counsel for amicus curiae Consumer Attorneys of California.
May 16 2007Order filed
  The request of counsel for appellant in the above-referenced cause to allow two counsel to argue on behalf of appellant at oral argument is hereby granted. The request of appellant to allocate to amici curiae Association of California Insurance Companies et al. 15 minutes of appellant's 30-minute allotted time for oral argument is granted.
May 16 2007Order filed
  The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amicus curiae Consumer Attorneys of California 10 minutes of respondent's 30-minute allotted time for oral argument is granted.
Jun 6 2007Cause argued and submitted
 
Aug 29 2007Notice of forthcoming opinion posted
 
Aug 30 2007Opinion filed: Affirmed in full with directions
  The judgment of the Court of Appeal is affirmed. The case is remanded with directionsthat Litigation should continue under the primary assumption of risk doctrine. -----Majority opinion by : Corrigan, J. -----Joined by: George, C.J. Baxter, Werdegar, Chin, Moreno, J.J. -----Concurring and Dissenting opinion by: Kennard, J.
Sep 13 2007Change of contact information filed for:
  Notice of Firm Name Change Micahel, Maguire & Associates counsel for appellantJack Ahn
Nov 1 2007Remittitur issued (civil case)
 
Nov 8 2007Received:
  Receipt for Remittitur from CA2, Div4.
Nov 8 2007Returned record
  to CA2, Div. 4 - 2 doghouses

Briefs
Nov 21 2006Opening brief on the merits filed
 
Jan 23 2007Answer brief on the merits filed
 
Feb 13 2007Reply brief filed (case fully briefed)
 
Mar 19 2007Amicus curiae brief filed
 
Mar 28 2007Amicus curiae brief filed
 
Mar 28 2007Amicus curiae brief filed
 
Mar 28 2007Amicus curiae brief filed
 
Apr 27 2007Response to amicus curiae brief filed
 
May 9 2007Response to amicus curiae brief filed
 
May 9 2007Response to amicus curiae brief filed
 
May 9 2007Response to amicus curiae brief filed
 
Brief Downloads
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AnswerPetitionForReview.pdf (729378 bytes) - Answer to the Petition for Review
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AnwersOnMerits.pdf (2178640 bytes) - Answer on the Merits
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PetitionForReview.pdf (2154931 bytes) - Petition for Review
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ReplyOnMerits.pdf (1152754 bytes) - Reply on the Merits
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 25, 2011
Annotated by Lorenzo Arroyo

Facts:
Plaintiff and defendant were playing golf together when plaintiff was struck and injured by a ball hit by defendant.

While defendant was teeing up for a new hole, plaintiff finished putting the previous hole and took a shortcut to the next hole, placing him "in front of defendant and to his left." Defendant then "pulled" his shot and hit plaintiff in the temple. The parties dispute whether defendant knew where plaintiff was standing.

Procedural History:
Defendant sought summary judgment in the trial court on the primary assumption of risk doctrine. The trial court first granted the judgment, but then reversed itself, concluding that triable issues remained. The Court of Appeals upheld the denial of summary judgment, reasoning that the primary assumption of risk doctrine did not apply to golfers of the same group. They applied general negligence principles and remanded for trial on appointment of fault. The Court granted review of this case to resolve the split between Courts of Appeal regarding the proper negligence standard in golf.

Issue:
Does primary assumption of risk doctrine regulate the duty a golfer owes to playing partners?

Holding:
Yes, primary assumption of risk regulates golfers' conduct and their relationship to the sport. The relationship between the golfers (e.g. whether they are members of the same group or are strangers) is immaterial. Nonetheless, summary judgment was properly denied here because there are material questions of fact as to whether the conduct exhibited by the defendant was so reckless as to constitute a breach of the narrow duty owed under assumption of risk doctrine.

Analysis:
The Court held in Knight v. Jewett 3 Cal. 4th 296 (1992) that primary assumption of the risk governs contact sports. They defined the primary assumption of risk doctrine as imposing "no duty to protect a plaintiff from particular harms arising from ordinary, or simple negligence." In the sports context, this means that a participant assumes all risk that are inherent in a sport, even where internal rules and norms forbid certain conduct. This requires a fact-specific inquiry into the "fundamental nature of the sport and the defendant's role in or relationship to that sport."

The Court in Knight reasoned that primary assumption of the risk is the only way to prevent a chilling effect in sports. Their goal is avoid fundamentally altering the nature of sport, something that would happen by imposing legal liability on participants for foreseeable injuries. Thus, the test for imposing a duty of care is whether conduct is "so reckless as to be totally outside the range of the ordinary activity involved in the sport." The Court worked through several examples to show how this doctrine applied in skiing, high school swimming, and intercollegiate baseball. In each case, the Court notes that it is the participant's relationship to the sport and the sport's inherent risks that is the point of inquisition. The focus is on what is expected in an activity and whether a defendant's conduct is so far removed from that expectation as to constitute a breach of duty under the assumed risk doctrine.

The Court noted that Knight left open the question whether primary assumption of risk should be applied to non-contact sports like golf. The Court reasons that golf is an active sport with certain inherent risks known to all golfers. They reject the Court of Appeals reasoning that the standard should turn on the relationship between the participants. Further, they argue that the reasoning in Knight is supported by several other states that have adopted an assumption of the risk standard for golf. Those states include Ohio, New Jersey, Massachusetts, Texas and Hawaii. All of this combines to extend the assumption of risk doctrine to golf.

The Court makes a final distinction between primary and secondary assumption of the risk. Secondary assumption of the risk concerns the apportionment of damages after the liability phase, in a manner that is analagous to comparative negligence. The Court admonishes lower courts to keep the distinction clear at the threshold stage of determining whether a duty was owed to the plaintiff.

Ruling:
The case was remanded to the lower court for adjudication on the facts. Material questions of fact exist for the fact finder, bearing on whether the conduct of the defendant exceeded the threshold for recklessness on the assumption of risk standard.

Dissent:
Justice Kennard disagreed that primary assumption of risk was the proper standard for any of the sports. Rather, Justice Kennard would apply standard negligence to the case at hand.

By Lorenzo Arroyo