KENNARD, J. 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 justices concluded that a statutory obligation could, by operation of Evidence Code section 669,1 reinstate the duty to act with due care that they had just proposed to eliminate in Knight. (Ford, supra, at pp. 342-351 (lead opn. of Arabian, J.) and pp. 364-369 (conc. and dis. opn. of George, J., joined by Lucas, C. J.).)
In both Knight and Ford, I disagreed with the proposal to discard the traditional doctrine of voluntary assumption of risk. Instead, in both cases I analyzed the issues by applying that doctrine, which holds each person accountable for the normal and expected consequences of a freely chosen course of conduct. (Knight, supra, 3 Cal.4th at pp. 324-338 (dis. opn. of Kennard, J.); Ford, supra, 3 Cal.4th at pp. 351-364 (conc. opn. of Kennard, J., joined by Panelli and Baxter, JJ.).)
This case has given rise to five separate opinions, including a concurring opinion by the author of the majority opinion. The only point on which a majority of this court can agree is that a Placer County skiing ordinance that “preserves common law principles of assumption of risk” (maj. opn., ante, at p. 1070) does not impose a duty on skiers to avoid harm to other skiers. But the conflicting concurring opinions expose the inherent incongruity between the plurality’s proposal in Knight to eliminate a sports participant’s duty of due care and its suggestion in the companion case of Ford that a statutory obligation read together with Evidence Code section 669 could displace Knight’s “no-duty-of-due-care” rule. Under the plurality view in Knight, a sports participant would have no duty to exercise due care toward other sports participants. But Evidence Code section 669, relied on by that same plurality in Ford, creates only a presumption that a person who has violated a statute or ordinance has failed to exercise due care. Thus, if one accepts (as I do not) the soundness of the Knight plurality view that sports participants have no duty to exercise due care, then, as Justice Chin’s concurring opinion in this case points out, it logically follows that a statutory presumption of lack of due care cannot result in liability for a sports participant. (See conc. opn. of Chin, J., post, at p. 1079.)
[1075]The authoring justice of the Knight plurality, apparently unwilling to hold that a legislatively imposed duty is irrelevant to tort liability, joins Justice Werdegar’s concurring opinion in this case. (See conc. opn. of Werdegar, J., joined by George, C. J., post.) That opinion attempts to salvage Ford’s exception to Knight’s “no-duty-of-due-care” rule, but can do so only by adopting a construction of the term “due care” as used in Evidence Code section 669 that is inconsistent with its traditional meaning of acting without negligence, that is, acting as a reasonable person would in like and similar circumstances. (See Prosser & Keeton on Torts (5th ed. 1984) § 32, p. 175.) Under Justice Werdegar’s construction, “due care” means whatever conduct is required by the applicable statute regardless of whether the underlying common law standard of liability is negligence, recklessness, or intentional harmfulness. (Conc. opn. of Werdegar, J., post, at pp. 1077-1078; see also conc. opn. of Mosk, J., ante, at p. 1073, fn. 1.)
This case illustrates the extent to which the Knight plurality’s effort to abandon the traditional doctrine of assumption of risk is tearing at the fabric of tort law. Those who accept the underlying premise of the Knight plurality either must conclude that legislatively created duties have no bearing on the tort liability of sports participants or must distort the negligence concept of due care to encompass reckless and intentional conduct.
The majority opinion in this case characterizes as “controlling law” the view expressed by the Knight plurality. (Maj. opn., ante, at p. 1067.) But as I pointed out earlier, that view was embraced by only three justices in Knight and in its companion case, Ford. Although later decisions by this court contain statements reiterating what the three-justice plurality had said in Knight (see Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 479-481 [63 Cal.Rptr.2d 291, 936 P.2d 70]; Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537-538 [34 Cal.Rptr.2d 630, 882 P.2d 347]), those statements were dicta because they were not essential to the court’s reasoning, as I noted in my dissent in Parsons at pages 503-504, footnote 4. I remain unpersuaded, for the reasons given in my dissenting opinion in Knight, of the soundness of the Knight plurality view. Therefore, I would resolve the issue here under the traditional doctrine of voluntary assumption of risk, as I did in Knight and Ford.
Applying that doctrine, I would analyze this case as follows: Defendant Drew R. Antablin collided with plaintiff Wilkie Cheong while the two law partners were skiing together at the Alpine Meadows ski resort in Placer County. Collisions between skiers are so much an expected risk of downhill skiing that Placer County has enacted an ordinance listing it as one of the “[i]nherent risks of skiing.” (Skier Responsibility Code of Placer County, [1076]§ 12.131(a).) The transcript excerpts from plaintiff’s deposition that defendant submitted in support of his motion for summary judgment leave no doubt that plaintiff’s choice to confront this well-known risk of downhill skiing was a freely made and informed one. Plaintiff had been a downhill skier for over 20 years and had skied at Alpine Meadows more than 50 times. This undisputed evidence amply established the defense of voluntary assumption of risk to plaintiff’s cause of action for negligence, thus entitling defendant to summary judgment.
Evidence Code section 669 provides: “(a) The failure of a person to exercise due care is presumed if: [<ffl (1) He violated a statute, ordinance, or regulation of a public entity; HD (2) The violation proximately caused death or injury to person or property; [H (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and flfl (4) The person suffering the death or injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”