Ordway v. Superior Court

Case brief: template

Case name:	Ordway v. Superior Court
Court:	Court of Appeal of California, Fourth Appellate District, Division Three
Citation; Date:	198 Cal. App. 3d 98; 243 Cal. Rptr. 536; 1988

PROCEDURAL HISTORY
Trial court:	Appeal court (for appeal cases only):
Plaintiff:	Appellant:	Ordway
Defendant:	Respondent:	Superior Court of Orange County, Casella (jockey)

Facts of the case:

Judy Casella, a veteran jockey who had ridden in 500 professional horse races without incident, was thrown from her mount and further injured when the equine fell and rolled over her during a quarterhorse race at Los Alamitos Race Course on January 3, 1983. The tragic chain of events began when Over Shadow, owned by petitioner Homer Ordway, tangled with another steed, Speedy Ball, who then stumbled in front of Casella's horse. The California Horse Racing Board determined the jockey riding Over Shadow violated a board rule by "crossing over without sufficient clearance, causing interference," and he was suspended for five racing days. Alleging "negligence, carelessness and unlawful conduct," Casella sued the riders, trainers, and owners of Over Shadow and Speedy Ball.

Procedural history:

Court opinion (including key issues and arguments):

    Does reasonable implied assumption of risk remain a viable defense after the adoption of comparative fault? We hold it does.
    (3) Courts and legal scholars have traditionally recognized three forms of assumption of risk. Express assumption of risk is exactly what the term describes: Where "the potential plaintiff agrees not to expect the potential defendant to act carefully, thus eliminating the potential defendant's duty of care, and acknowledging the possibility of negligent wrongdoing," the potential plaintiff has expressly assumed the risk of injury. ...
    (4a) Reasonable implied assumption of risk is the inferred agreement to relieve a potential defendant of a duty of care based on the potential plaintiff's reasonable conduct in encountering a known danger. A second variety of implied assumption of risk is labeled unreasonable.
    "The defenses of assumption of risk and contributory negligence are based on different theories. Contributory negligence arises from a [plaintiff's] lack of due care. The defense of assumption of risk, on the other hand, will negative liability regardless of the fact that plaintiff may have acted with due care.
    The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant's duty of care has been reduced in proportion to the hazards attendant to the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily -- and reasonably -- assumed the risk cannot prevail. Or stated another way, the individual who knowingly and voluntarily assumes a risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant's duty of care.
    ... [T]he distinction between the "reasonable" and "unreasonable" plaintiff is superficially anomalous: The former's civil action is barred while the latter's is allowed to go to judgment, reduced only in proportion to fault. But the explanation has nothing to do with rewarding or punishing a plaintiff.... Rather, it is found in the expectation of the defendant. He or she is permitted to ignore reasonably assumed risks and is not required to take extraordinary precautions with respect to them. The defendant must, however, anticipate that some risks will be unreasonably undertaken, and a failure to guard against those may result in liability.
    Those who have taken a remunerative or recreational risk with a conscious awareness of all it entails, however, are on their own. A circus need not provide a net for an aerialist who does not want one. The owner of a dangerous piece of property, Niagara Falls for example, will have a complete defense to an action by a Hollywood stuntperson who, encased in a barrel, elects to enter the river above the falls. But the garden-variety inattentive member of the public who passes through a gate negligently left open, in the misguided belief that the water above the falls is safe for swimming, will only suffer a proportionate reduction in damages. A defendant must, under appropriate circumstances, anticipate the fool (which is merely another way of describing the careless and negligent). ...
    The conduct of the stuntperson is "reasonable" in the eyes of the law, but not that of the negligent bather. Concededly, it does sound strange to decree that unreasonable plaintiffs may recover and reasonable ones may not; but the problem is not of law but semantics. If the "reasonable-unreasonable" labels were simply changed to "knowing and intelligent" versus "negligent or careless," the concepts would be more easily understood.
    the consent of a professional athlete "is not constructive consent; it is actual consent implied from the act of . . . electing to participate in the activity [citation]. When thus analyzed and applied, assumption of risk is not an absolute defense but a measure of the defendant's duty of care and thus survives the enactment of the comparative fault statute ...
     First, Casella's complaint alleged only that her injuries were caused by "the negligent, careless and unlawful manner in which the Defendants . . . rode, . . . owned and trained the horses, Over Shadow and Speedy Ball." She never used the words "reckless" or "intentional"; and neither expression would accurately characterize the defendant jockeys' conduct, as she herself described it.
    The correct rule is this: If the defendant's actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants -- such as blocking in football, checking in hockey, knock-out punches in boxing, and aggressive riding in horse racing -- no cause of action can succeed based on a resulting injury. It is of no moment that the participants may be penalized for these actions by the officials. Routine rule violations, such as clipping in football, low blows in boxing, and fouls in horse races are common occurrences and within the parameters of the athletes' expectations.

Disposition of case:

The alternative writ is discharged. Let a peremptory writ issue directing the superior court to grant Ordway's motion for summary judgment and enter judgment in his favor accordingly.

ECONOMIC ANALYSIS OF THE CASE