As common law doctrines evolve, sometimes their rationale, and proper application, can get lost; that can be because of just one “less than thoughtful” reported appellate decision. One example is an appellate decision in the 1990s limiting the application of…
California’s “primary assumption of the risk” doctrine was first set forth in Knight v. Jewett (1992) 3 Cal.4th 296. That case involved a plaintiff’s claim for personal injuries sustained when the defendant knocked her over and stepped on her finger while they were playing touch football. At issue was how the courts should apply the traditional legal defense of assumption of the risk, in light of the comparative fault principles that had recently evolved in California jurisprudence.
In Knight, the California Supreme Court focused on legal duty: “In cases involving ‘primary assumption of risk’ – where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury – the doctrine continues to operate as a complete bar to the plaintiff’s recovery. In cases involving ‘secondary assumption of risk’ – where the defendant does owe a duty of care to plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty— the doctrine is merged into the comparative fault scheme….” (Knight, 3 Cal.4th at pp. 314–315.) In the context of the touch football game there at issue, the court defined the “demarcation line” of legal duty as being whether the defendant’s conduct was so reckless as to be totally outside of the range of the ordinary activity involved in the sport. Knight, 3 Cal.4th at p. 320. As to those fact situations where the defendant’s conduct was within the parameters of the sport, the defendant owed no legal duty, so the plaintiff’s claim would be barred as a matter of law. Ibid.
Thus began a long ongoing judicial inquiry into a myriad of fact situations: when does the primary assumption of the risk doctrine impose a “no duty” bar to a plaintiff’s claims; and when do traditional tort principles (a finding of duty, followed by an inquiry as to breach and damages) apply?
Over the years, the courts have applied the doctrine of primary assumption of the risk as a bar primarily in the sports and recreational context. The doctrine’s judicial use in other circumstances has been limited, because courts are hesitant to impose the fatal consequences of finding no duty (i.e., barring a plaintiff’s claim without employing the analytic model of due care set out in Civil Code Section 1714, and the jurisprudence of contributory fault). Cf., Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 781 (discussing that judicial reluctance in a similar context: “In urging us to hold it owed Cabral no duty because he was injured only as a result of his own negligence, Ralphs asks us to do under the duty rubric what we would not do in the name of causation …, an invitation we should again decline.”).
Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69-70 is one of many cases noting the doctrine’s usual application in the sports and recreational context, so as to assure the integrity of the sport: “The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where ‘conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself’ and their removal would alter the nature of the sport. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.”
Indeed, over the years the doctrine has been applied to bar a plaintiff’s injury claim in numerous sports and recreational contexts. Illustrative is American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, where a golfer was struck by a ball hit by another player: his personal injury action against the golf course for negligent design and placement of the yardage marker was held barred by the primary assumption of the risk doctrine because “errant shots are an inherent risk of golf.” See also, Ford v. Gouin (1992) 3 Cal.4th 339, decided along with Knight, where an allegedly negligent water skier was sued by an injured plaintiff, who was a co-participant in that activity; held, the defendant could be liable only if he intentionally injured plaintiff or engaged in conduct that was so reckless that it was totally outside the range of the ordinary activities involved in the sport. See also, as to the activity of recreational horseback riding, Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545, as modified on denial of reh’g (Sept. 25, 2009): “The rider generally assumes the risk of injury inherent in the sport.” See also, as to figure skating, Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1634: “…collisions with other skaters in group skating sessions, and the injuries that may result therefrom, are inherent risks of the sport of figure skating.” These are but four of many published cases that apply the doctrine as a bar to a plaintiff’s claims arising from a wide swath of sports and recreation activities.
The doctrine has been applied in more unique factual circumstances as well. In Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658, plaintiff sustained a burn injury while ceremonially and recreationally approaching a burning structure at the “Burning Man” festival. The court imposed the doctrine to bar his claim against the entity that organized the event.
Another activity found to fall on the “apply the doctrine” side of the line was “organized, noncompetitive, recreational motorcycle riding.” Amezcua v. Los Angeles Harley-Davidson (2011) 200 Cal.App.4th 217, 231. But the case is of particular interest because, while it applies the doctrine to bar the plaintiff’s claim, it expressly states the judicially limited scope of the doctrine: “Some courts have expanded the application of primary assumption of risk beyond ‘sports’ to activities that might be accurately described as ‘recreational.’”
The reality is that judicial use of the doctrine has been much more restrained outside the sports and recreation context; the courts have also excluded certain recreational activities from its application, where there are policy related concerns. The holding in Childs, 115 Cal.App.4th 64, is illustrative. The case did involve a recreational activity: a child was injured while riding a scooter on a public sidewalk. But the court, at p. 71, declined to apply the doctrine as a complete bar to plaintiff’s injury claim even in that recreational context:
Riding a scooter may be subject to the doctrine under some circumstance, but we cannot conclude, as the trial court did, that riding a scooter is a recreational activity subject to the doctrine under all circumstances. Based on the undisputed facts, applying the assumption of risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of liability for injuries caused by inherent risks in the activity.
Childs, 115 Cal.App.4th at 71, goes on to discuss the need to consider public policy in deciding whether the doctrine should be applied. There, the court noted that barring the minor plaintiff’s claims as a matter of law for injuries sustained while riding on her scooter might have an undesired effect: “To the contrary, it might chill the riding of scooters and other wheeled toys, a result which would not be consistent with the purpose of the doctrine.” See also, Cabral, 51 Cal.4th at 772 (describing the necessary judicial inquiry as: “…whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy….”).
In Gordon v. Havasu Palms, Inc. (2001) 93 Cal.App.4th 244, 251, the court similarly refused to apply the primary assumption of the risk doctrine despite the fact that the plaintiff’s injuries arose from the recreational nature of use of a private plane. The court found that the plaintiff did not consent to, or agree to excuse, a landing strip owner’s breach of its duty to design and maintain a safe airstrip, so the doctrine did not apply.
In Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, the court denied application of the primary assumption of the risk doctrine where an adult student at a public school sought legal protection against the alleged negligence of District employees in failing to supervise and instruct him as to work he was doing: how to load wooden bleachers on a flatbed trailer. The court would not, as the District sought, abrogate defendant’s duty of care under these facts, stating at 842:
The wise and just rule to be applied in this case is one that imposes a duty of reasonable care upon the District to Patterson and apportions responsibility for damages between the District and Patterson according to their respective degrees of fault. Given the nature of the instructors’ alleged breach of duty in this case, there is no reason in law, equity or policy to absolve the District entirely from liability for damages suffered by Patterson.
One application of the doctrine beyond the sports and recreation context has, however, been frequent. The doctrine has been frequently held to bar the claim of a plaintiff with a professional, job-related responsibility to perform a task. These claims arise under circumstances where plaintiff then seeks relief against the source of the very risk for which he or she was being paid.
Illustrative is the pre-Knight case of Nelson v. Hall (1985) 165 Cal.App.3d 709 (veterinarians and their assistants [compensated professionals] were held to assume the risk of dog bites in the course of treating dogs as a matter of law, analogous to the longstanding legal rule that firefighters assume the risks of their work); and see, Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 (claim for assault against a patient by a professional nurse’s aide was barred because the parties’ relationship to the activity was plaintiff’s professional responsibility to provide this very protection to the patient, and the particular risk of harm that caused the injury was the very risk plaintiff and her employer were hired to prevent); and see, Dyer v. Superior Court (1997) 56 Cal.App.4th 61 (barring liability where a tow truck driver, who was injured while assisting a motorist, sued the motorist for negligent failure to maintain his car in good condition).
The primary assumption of the risk doctrine will continue to be a battleground in personal injury litigation. For defense counsel, even the slim chance that there might be a judicial finding of “no duty” will be enough incentive to make it worthwhile for them to assert the doctrine as a bar in all sorts of factual circumstances, including construction accidents, motor vehicle accidents, and premises liability claims, among others. They can make a tenable case for application of the doctrine pretty much any time the plaintiff arguably assumes some risk of harm when undertaking his or her actions: a construction worker walking on a damaged roof, for example; or a business invitee walking on a cracked walkway.
The courts should exercise caution in applying the doctrine of primary assumption of the risk, which could amount to finding a “no duty” bar to broad categories of injury claims: it would make little sense to develop, and have the courts and the public rely on, a jurisprudence founded on the principles of comparative fault, and then omit a large group of fact situations from it.