Ara Jabagchourian
Primary
Assumption of the Risk: An
ever-growing doctrine 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 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 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
70 — The Advocate Magazine JANUARY 2012
refers to situations in which “the defen- dant does owe a duty of care to the plain- tiff 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 compara- tive 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 activi- ty.” (Id. at pp. 314-15.) This is an objective test, rather than a subjective one. Therefore, the issue of the plaintiff ’s rea- sonableness in assuming the risk is irrele- vant. 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 pri- mary 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 specifi- cally 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 foot- ball, it is clear from the opinion that the doctrine applies not only to sports, but to other activities involving an inher- ent risk of injury to voluntary partici- pants 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 run on the reasonable- ness or unreasonableness of the plain- tiff ’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relation- ship of the defendant and the plaintiff to that activity or sport.’
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