Bushnell

*528 Opinion

Gary Bushnell suffered a broken leg while attempting to perform an exercise during a judo class at the Japanese-American Religious and Cultural Center, Concord Judo Club. (Hereafter the defendants will be referred to collectively as the Club.) Bushnell’s partner in the exercise was Daniel Tamori, an instructor at the Club, and the evening’s activities were supervised by George Tamori, the Club’s director and head of instruction at the Club. The trial court granted summary judgment to the Club on the theory that the defense of primary assumption of risk as defined in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ], provided a complete defense to the action. Bushnell contends that the defense does not apply here, because unlike the plaintiff in Knight , he was not injured by an amateur coparticipant in an unsupervised sport, but by an instructor in a sport organized by the Club and supervised by another instructor employed by the Club. It is true that the relationship between the plaintiff and the defendant is a factor to be considered in determining if the defense of primary assumption of risk applies and instructors may be held liable when…

I respectfully dissent. The majority concludes that summary judgment was properly entered because this case involves primary implied assumption of risk. (Maj. opn., ante, pp. 534-535.) In my view, this case involves secondary implied assumption of risk and, accordingly, is governed by principles of comparative fault. Since the trier of fact must determine the relative responsibility of plaintiff Gary Bushnell and defendant’s agent Daniel Tamori, summary judgment should not have been granted.

In Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ], the Supreme Court considered “the question of the proper application of the ‘assumption of risk’ doctrine in light of [the] adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 [ 119 Cal.Rptr. 858 , 532 P.2d 1226 , 78 A.L.R.3d 393 ].” (Knight v. Jewett, supra, 3 Cal.4th at pp. 299-300.) The plurality opinion summarized its holding as follows: “In cases involving ‘primary assumption of risk’—where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused…

Gary Bushnell suffered a broken leg while attempting to perform an exercise during a judo class at the Japanese-American Religious and Cultural Center, Concord Judo Club. (Hereafter the defendants will be referred to collectively as the Club.) Bushnell's partner in the exercise was Daniel Tamori, an instructor at the Club, and the evening's activities were supervised by George Tamori, the Club's director and head of instruction at the Club. The trial court granted summary judgment to the Club on the theory that the defense of primary assumption of risk as defined in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal. Rptr.2d 2 , 834 P.2d 696 ], provided a complete defense to the action. Bushnell contends that the defense does not apply here, because unlike the plaintiff in Knight , he was not injured by an amateur coparticipant in an unsupervised sport, but by an instructor in a sport organized by the Club and supervised by another instructor employed by the Club. It is true that the relationship between the plaintiff and the defendant is a factor to be considered in determining if the defense of primary assumption of risk applies and instructors may be held liable…