What is the difference between a primary right and a legal theory upon which recovery for injury may be based?

The distinction between a primary right and the legal theories upon which recovery for injury to that right may be based is illustrated by the court's decision in Slater v. Blackwood (1975) 15 Cal.3d 791. In that case, the plaintiff, who was injured in an automobile accident while riding as a guest, filed a lawsuit in 1970 under California's then existing guest statute for injuries caused by the defendant's alleged intoxication and willful misconduct. Nonsuit was granted and the judgment was affirmed on appeal. After the guest statute was held to be unconstitutional as applied to an injured non-owner guest, the plaintiff filed a second lawsuit over the same accident, this time seeking recovery on a negligence theory. The trial court ruled that res judicata barred the second lawsuit, and judgment was entered in the defendant's favor. (Id. at p. 794.) In affirming the

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