Shin v. Ahn

I respectfully dissent. The order granting a new trial should be reversed, and the grant of summary judgment reinstated, because this is a classic case of primary assumption of the risk, not secondary assumption of the risk. "The existence of `"`[d]uty' is not an immutable fact of nature `"but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection."'"' [Citation.]" (Avila v. Citrus CommunityCollege Dist. (2006) 38 Cal.4th 148, 160-161 [41 Cal.Rptr.3d 299, 131 P.3d 383] (Avila).) "Primary…