In the 1990’s and early 2000’s, the California Supreme Court came up with legal fictions such as “assumption of risk” to deny injured victims compensation in instances like a Super Bowl half-time touch football game, jet skiing, snow skiing, and golfing. Surely these decisions saved insurance companies money, but it was the personal philosophy and attitude of the court at that time that the risk of such injuries should be borne by the victims, not by spreading that risk out to insurance companies.
The Supreme Court during this period (we will call it “the Dark Ages”) had to stand on its head at times to deny victims compensation. Thus the “sporting activity” test for assumption of risk was tortured into existence. If you are skiing or snowboarding and some yahoo runs you over, you lose because it is a sporting activity. However, if kids are throwing snowballs at each other and consequently run you over, that is not a sporting activity and you can recover. As in medieval Europe, the Dark Ages for the California Supreme Court was caused by social and economic factors. The laws were always there, but like witches in medieval times, were often tortured to get the final result the justices wanted.
The California Supreme Court, with three relatively recent appointees, like previous courts, reviews the black-letter law that all recognize controls the decision: [“A plaintiff in any negligence suit must demonstrate “‘a legal duty to use due care, a breach of such legal duty, and [that] the breach [is] the proximate or legal cause of the resulting injury.’”(citations omitted) … Duty is a question of law for the court, to be reviewed de novo on appeal.” …“California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).)” … Civil Code section 1714, subdivision (a) provides in relevant part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”]
This is and has been the law for many years in California and other jurisdictions. In Kesner v. Superior Court (2016) 1 Cal.5th 1132, the defendants and their insurance companies asked the Supreme Court to exclude them from liability to victims injured by the defendants’ products away from the defendants’ premises. The Supreme Court stopped, looked at the law, and stated: we will not “carv[e] out an entire category of cases from th[e] general duty rule” of section 1714, subdivision (a), unless doing so “is justified by clear considerations of policy.”
The Supreme Court reversed the Court of Appeal and allowed the plaintiffs their day in court. A new day is dawning, the Dark Ages are hopefully over.
