Segoviano

Introduction

This appeal presents the question of what part, if any, the defense of reasonable implied assumption of the risk (RIAR) plays in our comparative fault system today. RIAR exists when a plaintiff acts reasonably in voluntarily encountering a known risk of injury. It is to be contrasted with another form of implied assumption of risk—where a plaintiff acts unreasonably in confronting a known risk of injury. There is, of course, a third type of assumption of the risk, express, when plaintiff, in advance, orally or in writing, consents to relieve the defendant of a legal duty and to take his or her chances of injury from the known risk. (Gonzalez v. Garcia (1977) 75 Cal.App.3d 874, 878 [ 142 Cal.Rptr. 503 ]; Prosser, Torts (4th ed. 1971) § 68, p. 440; Rest.2d Torts, § 496A, corns, c, d; Schwartz, Comparative Negligence (1974) p. 157.)

We hold that RIAR plays no part in the comparative negligence system of California; it is neither a bar to plaintiff’s recovery on the theory that it forecloses the existence of a duty of care by the defendant toward the plaintiff nor is it a partial defense justifying allocation of a portion of the fault for the accident to the…