Cheong

I concur in the result.

Participants in an active sport ordinarily have no duty to coparticipants “to refrain from the normal activities of the sport, however unreasonable it would be to inflict such activities on nonparticipants.” (4 Harper et al., The Law of Torts (2d ed. 1986) § 21.3, p. 223.) That is my understanding of the rule adopted in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ]. As I explained in my concurring and dissenting opinion in Knight , however, I would discard the confusing, and unnecessary, terminology of “primary assumption of risk” and analyze the issue as a question of “duty.” (Id. at pp. 321-322 (conc. and dis. opn. of Mosk, J.).)

The no-duty rule of Knight applies unless it is displaced. For example, the Legislature could enact a statute providing that a coparticipant in a particular active sport owes a duty of care not to engage in particular conduct that might otherwise be considered one of the “normal activities of the sport.” I agree with the Court of Appeal that the ordinance here—the Skier Responsibility Code of Placer County—does not purport to displace the no-duty rule of Knight . On the contrary, it embraces the…

I concur in the result.

In Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight), a plurality comprised of three justices (the Knight plurality) announced its intention to abandon the traditional doctrine of assumption of risk as an affirmative defense in a negligence action. For those situations in which assumption of risk is not merely a variant of contributory negligence (referred to by the Knight plurality as “secondary" assumption of risk), the Knight plurality proposed a new doctrine of “primary” assumption of risk that would in certain circumstances modify or reduce the duty of care that one person owes to another. (Id. at pp. 305-315 (lead opn. of George, J., joined by Lucas, C. J., and Arabian, J.).) In the context of sports activities, “primary” assumption of risk would operate to excuse sports participants *1074 from the usual duty under negligence law of acting with due care, leaving them with only the duty to refrain from conduct that is reckless or intentionally harmful. (Id. at pp. 315-321.) In Knight’s companion case, Ford v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 , 34 A.L.R.5th 769 ] (Ford), these same three…

I have joined the majority opinion because I agree generally with its reasoning and concur in the result. The majority correctly observes in order to decide this case we “need not resolve” (maj. opn., ante, at p. 1071) whether or how Evidence Code section 669 (section 669) may affect a plaintiff’s burden of proof in tort litigation generally, or revisit the complex of related issues that led to our fragmented decision in Ford v. Gouin (1952) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 , 34 A.L.R.5th 769 ] (Ford). Nevertheless, Justice Chin writes separately, suggesting plaintiff’s claim also may be rejected on the ground section 669 “does not affect the assumption of risk principles established in Knight [v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ]]” (conc. opn. of Chin, J., post, at p. 1078). In my view, that suggestion unjustifiably departs from the plain language of section 669 and does not accord with long-standing precedent respecting the negligence per se doctrine.

Justice Chin implicitly argues that section 669 may never bear on a plaintiff’s burden of proof as to the existence vel non of a tort duty (see conc. opn. of Chin, J., post, at p. 1079…

Obviously, I concur in the majority opinion I have authored. I write separately to state another reason to reject plaintiff’s argument under Evidence Code section 669, subdivision (a) (section 669(a)). The majority opinion does not decide whether, assuming the four elements of section 669(a) are satisfied, that statute creates tort liability between coparticipants in an active sport notwithstanding our decision in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight). (Maj. opn., ante, at p. 1071.) I would also hold that section 669(a) does not affect the assumption of risk principles established in Knight. Knight applies to this case, not section 669(a).

As relevant, section 669(a) states, “The failure of a person to exercise due care is presumed if’ four requirements are met. This statute, however, does not establish tort liability. Rather, it merely “codifie[s]” the rule that “a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute.” (Vesely v. Sager (1971) 5…

Two friends went skiing together. One collided with the other, inflicting injury. We must decide whether the injured skier has a valid action *1066 in tort against the uninjured skier. The issue’s resolution requires us to revisit the questions of duty and assumption of risk in a sports setting we considered in Knight v. Jewett (1992) 3 Cal.4th 296 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight) and Ford v. Gouin (1992) 3 Cal.4th 339 [ 11 Cal.Rptr.2d 30 , 834 P.2d 724 , 34 A.L.R.5th 769 ] (Ford) and to consider a Placer County ordinance relating to skier responsibility. We conclude 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, and we further conclude that the ordinance at issue in this case does not alter this rule. As there is no evidence the defendant skier intentionally injured plaintiff or acted recklessly, the trial court correctly granted summary judgment in his favor.

We affirm the judgment of the Court of Appeal, which reached the same conclusion.

I. Facts and Procedural History

The relevant facts are largely…