an organizer of a marathon based on 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 reason- ably safe event, which included providing fluids, and the plaintiff brought forth evi- dence indicating that marathoners com- monly expect such fluids during a race. In Eriksson v. Nunnink (2011) 191
Cal.App.4th 826, the court reversed sum- mary judgment granted to a riding coach that was based on the primary assump- tion 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 deter- mine 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 hit with a tee shot is barred under the primary assumption of the risk doc- trine. The California Supreme Court remanded the case because the record was unclear whether or not the defen- dant 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 activi- ty 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 harm and tailor a discovery plan that obtains the needed
information. This should provide you enough evidence to hurdle a motion for summary judgment.
DARRYL H. GRAVER, ESQ. EXPERIENCED
ARBITRATOR/MEDIATOR “Have Gavel Will Travel”
Over 3,000 successful conclusions TM
To Schedule, call Judicate West 800.488.8805
818.884.8474 fax 818.884.8388
Los Angeles, Orange, Ventura, Santa Barbara, San Luis Obispo, Kern Counties
R.A. CARRINGTON
www.CaliforniaNeutrals.org
BUSINESS EMPLOYMENT INSURANCE
“ Ara Jabagchourian is a partner at
Cotchett, Pitre & McCarthy LLP, where he practices civil litigation in several areas, including financial fraud, injury and intel- lectual property. Prior to joining private practice, Jabagchourian served as a staff attorney for the Federal Trade Commission’s Bureau of Competition in Washington, D.C.
PROBATE PERSONAL INJURY PROFESSIONAL NEGLIGENCE
Mr. Carrington was very knowledgeable. Insurance companies respect his opinion. Extensive trial experience (ABOTA), Excellent Mediator, fair objective arbitrator. Extraordinarily capable and forthcoming with efforts and involvement. He is very thorough and fair.
” Quote from 2006 Consumer Lawyers Evaluations PH 805.565.1487 FAX 805.565.3187
ratc@cox.net 565 SHEFFIELD, SANTA BARBARA, CALIFORNIA 93108 JANUARY 2012 The Advocate Magazine — 73
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