Doctrine — continued from Previous Page
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 “veterinar- ian rule” is an application of the primary assumption of the risk where the person “was injured during the course of treat- ing an animal under his control.”(Cohen v. McIntyre (1993) 16 Cal.App.4th 650, 655.) The “firefighter rule” is a particu- lar application of the primary assump- tion 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 pro- fessional 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 bit- ten by a dog while performing her job duties. The veterinarian was bitten as the dog’s muzzle was removed, without ask- ing the owner about the dog’s propensity to bite. In upholding the summary judg- ment 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 defen- dant’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 origi- nal.)
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
72 — The Advocate Magazine JANUARY 2012
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 doc- trine of primary assumption of risk. (Rosenbloom v. Honour Corp. (1998) 66 Cal.App.4th 1477, 1479.) In so holding, the court held that the defendant “rec- ognized 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 relat- ed to injuries she sustained during a training maneuver. (Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012.) First, the court noted that a pro- bation officer’s duties included restrain- ing 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 determi- nation of a primary assumption of the risk does not depend on the “‘subjective knowledge or appreciation of the poten- tial risk’ inherent in the activity, or con- sent to or 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 not 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 doc- trine 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 sense tells us that the risk is that much greater when riding in a pro- cession 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 argu- ment that the particular case is tradition- ally viewed as one of “secondary assump- tion,” 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 the ordinary activity involved in the 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
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