Bush v. Parents Without Partners

NICHOLSON, J.

I respectfully dissent.

In my opinion, the type of activity in which the plaintiff engaged falls within the range of activities covered by the analysis in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]. While Knight involves an activity traditionally considered a “sport,” the distinction between what is or is not a sport is unclear. In any event, the determination of whether primary assumption of risk applies does not hinge on whether the particular activity was a sport. “[T]he question of the existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, . . .” (Id. at p. 313, first italics in original, latter italics added.)

The activity in which the plaintiff voluntarily engaged here was participation in a dance in which a slippery substance is spread on the floor. A substance was commonly spread on the floor at the dances intentionally to make the floor slippery and thereby enhance the activity. On and off through the evening of each dance, the floor was swept because, evidently, the first sweeping did not remove all of the substance. Thus, the activity was not just dancing; it was dancing on a slippery floor.

That the plaintiff did not like the fact the organizers spread the substance on the floor is beside the point. Likewise, her alleged perception the slippery substance had been swept up is irrelevant because “the duty approach . . . does not depend on the particular plaintiff’s subjective knowledge or appreciation of the potential risk.” (Knight, supra, 3 Cal.4th at p. 316.)

The lead opinion in Ford v. Gouin (1992) 3 Cal.4th 339, 345 [11 Cal.Rptr.2d 30, 834 P.2d 724], explains the courts should not impose liability which “might well have a generally deleterious effect on the nature of the sport . . . .” Imposing liability for the plaintiff’s slip and fall here would effectively spell the discontinuation of slippery floor dancing, leaving only more docile forms of dancing. The majority effectively bans slippery floor dancing by finding a duty to the participant is breached when the dance hall operators and owners add a slippery substance to the floor. This is akin to forcing the ski resorts to remove all moguls by imposing liability on ski resorts for injuries caused by the moguls, a judicial imposition which Knight specifically disapproves. (3 Cal.4th at pp. 315-316, 318-319.)

I would find the plaintiff made a primary assumption of risk by participating in dancing on a slippery floor. Accordingly, I would affirm the judgment in favor of the defendants.