By: Ara Jabagchourian
Advocate
January 2012
The defense has worked to expand this doctrine beyond sports and employment-related activities. A look at ways to hurdle this argument.
Many of us are familiar with the notion of contributory fault as a defense which seeks to deflect partial blame upon the plaintiff for her injuries. However, there is also a defense raised in cases that would deflect all fault onto the plaintiff as a matter of law, known as the “implied primary assumption of the risk.” The premise for the doctrine of primary assumption of the risk was that it was limited to only sporting or professional-activity-related cases. However, there has been a slow, but growing trend to extend the primary assumption of risk defense beyond these traditional areas. This article discusses cases that go outside these traditional boundaries of assumption of the risk and then looks at the “increased risk of harm” line of cases as a method to hurdle the primary assumption of the risk argument.
Knight v. Jewett
Assumption of the risk can be either “primary” or “secondary.” Primary assumption of risk refers to instances where “there is ‘no duty’ on the part of the defendant to protect the plaintiff from a particular risk.” (Knight v. Jewett (1992) 3 Cal.4th 296, 308-09.) Primary assumption of risk is a complete defense and bars a plaintiff’s claim for relief in its entirety. Secondary assumption of risk refers to situations in which “the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.” (Id. at pp. 308-09.) Secondary assumption of risk has been subsumed into the doctrine of comparative fault, and is not a complete bar to recovery.
As the California Supreme Court has explained, in determining whether the defendant owed the plaintiff a legal duty to protect plaintiff from the particular risk that caused her harm, and thus whether primary assumption of the risk applies and bars plaintiff’s recovery, the court must look to “the nature of the activity and the parties’ relationship to the activity.” (Id. at pp.314-15.) This is an objective test, rather than a subjective one. Therefore, the issue of the plaintiff’s reasonableness in assuming the risk is irrelevant. this inquiry necessarily involves a fact-specific, case-by-case analysis.
Isn’t assumption of risk limited to sports?
A common misperception is that the primary assumption of the risk doctrine is limited to the sporting context. Presumptively, this arises out of the facts set forth in Knight (touch football). However, in Beninati v. Black Rock City, LLC (2009) 175 Cal.app.4th 650, 658, the court held that the doctrine of primary assumption of risk barred the claim of a plaintiff who had fallen into a fire pit during the Burning Man festival held in Nevada. The plaintiff in that case specifically argued that the doctrine of primary assumption of risk was inapplicable to activities undertaken at the Burning Man festival because the doctrine was limited to rule-based or active sports. The Court directly rejected that argument, stating,
Although Knight involved injuries occurring during a game of touch football, it is clear from the opinion that the doctrine applies not only to sports, but to other activities involving inherent risk of injury to voluntary participants like [plaintiff], where the risk cannot be eliminated without altering the fundamental nature of the activity. [Citation]. ”[T]he question whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not rum on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.’ (Id., quoting Knight, supra, 3 Cal.4th at p. 309, first emphasis added.)
The doctrine of primary assumption of the risk, therefore, is not limited to application in the sports context, but is applied to activities where the “risk cannot be eliminated without altering the fundamental nature of the activity.” (Ibid.)
Similarly, in Domenghini v. Evans (1998) 61 Cal. App.4th 118, 119-20, plaintiff was injured during a cattle roundup while helping defendants wrestle a calf to the ground. In that case, plaintiff was not an employee of defendants, and defendants were the owners of the calf. The court found that plaintiff’s claims was barred by primary assumption of the risk. Plaintiff argued that primary assumption of the risk did not apply because defendants, lessors of the ranch where the injury occurred, controlled the manner in which the roundup was conducted and were negligent in conducting it.
The Domenghini court rejected this argument, instead holding, “[p]rimary assumption of the risk bars [plaintiff’s] claim against the [defendants] because the risk that one will be hit by a calf’s head is inherent in the nature of a cattle roundup. ‘[T]his is a classic situation where a defendant’s ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.'” (Ibid.)
In the recent case Amezcua v. Los Angeles Harley-Davidson, the court held that the primary assumption of the risk doctrine absolved an organizer of a motorcycle group ride. (2011 DJDAR 15773 (October 27, 2011).) The Amezuca court explicitly stated that “the primary assumption of the risk doctrine is not limited to competitive sports (or even to co-participants).” The court held that an organized, noncompetitive motorcycle ride fell under the primary assumption of the risk doctrine because it “involves physical exertion and athletic risks not generally associated with automobile driving.” The Court further noted that “the risk of being involved in a traffic collision while riding a motorcycle procession on a Los Angeles freeway is apparent.”
In determining whether the danger of the primary assumption of the risk defense exists in a case, courts have focused on whether the activity itself has an inherent danger and what the injured party’s participation was in that activity.
Assumption of risk limited to professional activities
Although there are many cases that have applied the primary assumption of risk doctrine – the application of rules such as the “veterinarian rule” or the “firefighter rule” – the application of the defense is not so limited. The “veterinarian rule” is an application of the primary assumption of the risk where a person “was injured during the course of treating an animal under his control.” (Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 655.) The “firefighter rule” is a particular application of the primary assumption of risk doctrine that provides that “one who sets a fire owes no duty of care to a firefighter injured while engaged in fire suppression activities.” (Beninati, supra, 175 Cal.app.4th at 658.) Although many cases have applied the primary assumption of the risk doctrine to professional activities, the doctrine is being applied to fact patterns outside of this context.
Cases applying the primary assumption of the risk doctrine “professional activities”
Below are some classic examples of the primary assumption of the risk being applied to employment-related activities. In the case of Cohen v. McIntyre (1993) 16 Cal.App.4th 650, a veterinarian was bitten by a dog while performing her job duties. The veterinarian was bitten as the dog’s muzzle was removed, without asking the owner about the dog’s propensity to bite. In upholding the summary judgment motion, the court noted that the plaintiff “was injured during the course of treating an animal under his control”. (Id. at 655.) The court further held that “this is a classic situation where a defendant’s ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.” (Id. at 655, emphasis in original.)
The case of Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, a nurse’s aide in a convalescent hospital who was struck by a patient suffering from dementia brought suit against the patient’s estate. In applying the doctrine, the court found that the nature of the activity “was the protection of the patient from doing harm to herself and others [and] ‘the parties relationship to the activity’ was plaintiff’s professional responsibility . . .” (Id. at 1765.)
A person hired to remove a shark from a tank was barred from recovery against the shark’s owner under the doctrine of primary assumption of risk. (Rosenbloom v. Hanour Corp. (1998) 66 Cal.App.4th 1477, 1479.) In so holding, the court held that the defendant “recognized a certain expertise was necessary for the [ ] task.” (Id. at 1480.) That is why a person knowledgeable in the field was asked to do the work. The Rosenbloom court indicated that “no duty is owed to protect a shark handler from the very danger that he or she was employed to confront . . .[Defendant] is not liable as a matter of law.” (Id. at 1480-81.)
A probation officer was barred under the doctrine of primary assumption related to injuries she sustained during a training maneuver. (Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012.) First, the court noted that a probation officer’s duties included restraining violent juvenile offenders. Based on this, the court held that “[b]y continuing in this employment capacity, plaintiff assumed the risk that she would be injured . . . ” (Ibid.) The court’s determination of a primary assumption of the risk does not depend on the “‘subjective knowledge or appreciation of the potential risk’ inherent in the activity, or consent to a voluntary acceptance of that risk.” (Id. at 1024.)
Non-employment related activities
As explained above, in Domenhini v. Evans, the plaintiff sued for negligence related to injuries he sustained associated with his work on a cattle roundup. The plaintiff claimed that the act of a cattle roundup was “a team effort.” In holding that the primary assumption of risk barred his claims, the court found that the plaintiff was no an agent or employee of defendants. The court found that the nature of a cattle roundup entailed the risks of injury plaintiff was complaining of.
Similarly, as discussed above, in Beninati v. Black Rock City, LLC, the doctrine of primary assumption of risk barred the claim of a plaintiff who had fallen into a fire pit during the Burning Man festival held in Nevada. What the court focused on was that the activity itself had the inherent risk of being burned, and that such risk was apparent. And in Amezcua v. Los Angeles Harley-Davidson, in holding that the doctrine applied and that there was no greater risk of harm created by the organizer of a motorcycle ride, the court noted that “[c]ommon snese tells us that the risk is that much greater when riding in a procession of 200 motorcycles.”
The application of the doctrine has been cropping up in many unpublished opinions across the state. The doctrine appears to be slowly increasing its scope in the non-sporting and non-professional realms and one should approach injury cases with that in mind.
Increased risk of harm as a counter to the doctrine
The primary assumption of the risk doctrine does not mean that it is the end of the road for your case, even in cases where the doctrine is traditionally applied. Other than the obvious argument that the particular case is traditionally viewed as one of “secondary assumption,” plaintiff should look into whether there was an increased risk of harm.
Where a party increases the risk of harm to an activity that may have fallen within the primary assumption of the risk doctrine, that party can face liability for such conduct or omission. The California Supreme Court in Knight noted that a participant of a sport could be held liable if he engages in “reckless conduct that is totally outside the range of ordinary activity involved in sport.” (Knight, supra, 3 Cal.4th at 319-320.) Appellate courts have read this language broadly.
In Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, an appellate court reversed a grant of summary judgment to an organizer of a marathon the primary assumption of the risk. The organizer of the race failed to provide water and electrolyte fluids along the course. The court held that the organizer of the race has a duty to produce a reasonably safe event, which included providing fluids, and the plaintiff brought forth evidence indicating that marathoners commonly expect such fluids during a race.
In Ericksson v. Nunnink (2011) 191 Cal.App.4th 826, the court reversed summary judgment granted to a riding coach that was based on the primary assumption of the risk defense. The claim raised by the plaintiffs was that the horse their daughter rode at the time of her death was unfit for riding. The court held that despite the inherent risks associated with equestrian riding, the riding coach had the authority and responsibility to determine whether the rider’s horse was fit for competition. (Id. at 846.)
Shin v. Ahn (2007) 42 Cal.4th 482, 490, involved the question of whether a person hot with a tee shot is barred under the primary assumption of the risk doctrine. The California Supreme Court remanded the case because the record was unclear whether or not the defendant had acted recklessly in hitting the tee shot. (Id. at 499.)
Concluding thoughts
Ultimately, in determining whether the risk of harm was increased, the court’s first attempt is to define the inherent risk of the activity. Once that is established, the courts can then look to see if the risk was increased by the activity in any meaningful manner. Thus, if you believe your case may have some possibility of falling under the doctrine of primary assumption of the risk, allege an increased risk of tailor a discovery plan that obtains the needed information. This should provide you enough evidence to hurdle a motion for summary judgment.
