ASSUMPTION OF RISK IN CALIFORNIA-NOT AS SIMPLE AS IT SOUNDS
The essence of the tort doctrine “assumption of risk” is that a plaintiff should not be able to recover for injuries caused to the plaintiff if he or she willingly assumed the risk inherent in the activity. As an example, if I am a football player injured in a typical play, I should not be able to sue the other players, the coach or the team since I “assumed” the risk of injury inherent in playing football. Of course, as with so much at law, the issue soon becomes complicated. If I am injured in the game because another player intentionally sought to injure me by breaking the rules and his coach so instructed him, have I assumed that risk? Or if the field was not kept in good condition and I twisted and broke my ankle since the field was left with holes in it, have I assumed that risk? What precise risk am I assuming?
The law has become even more complicated due to the increasing use of “comparative negligence” standards in tort litigation and the creation of a new doctrine as to assumption of risk in California in 1992 under the famous case of Knight v Jewett. The changing law and the current status of “assumption of risk” is the scope of this article.
The Basic Law in California:
California’s current “primary assumption of the risk” doctrine was first set forth in Knight v. Jewett (1992) 3 Cal.4th 296. In that case, the plaintiff’s suffered injury while playing touch football. She claimed that the defendant pushed her over and stepped on her finger while they were playing. 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, discussed elsewhere on this website.
In the decision in the Knight case, the California Supreme Court focused on legal duty and allocated different criteria to what it called “primary assumption of risk” versus “secondary assumption of risk.” Previously, if one played a sport in which the risks were known and could be anticipated, one was barred from any recovery since one assumed the risk of injury. With comparative negligence allocating responsibility based on percentage of “fault,” the issue arose as to whether the traditional assumption of risk defense remained.
The court held: “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. 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.
This necessarily began a process of numerous cases which sought to answer the question in various fact situations as to what activity was beyond the range of normal activity involved in the sport thus secondary assumption of risk category. You expect to be tackled in football. But if someone intentionally tangles your legs as you are running by placing his leg between yours and breaks your leg, is that within the normal expectations of the sport? It is up to the jury to decide and liability can arise if they determine it is secondary assumption of risk.
Over the years, the courts have applied the doctrine of primary assumption of the risk as a bar usually in the sporting and recreational context. The use of that legal theory in other types of accident has been restricted since the complete bar to a claim often seemed extreme to the courts.
As stated succinctly in Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69-70 “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.”
The doctrine has been used in numerous types of “hazardous” sports ranging from golf (where a player was hit by a golf ball), water skiing, horseback riding, figure skating, and the various team sports.
But the doctrine has been applied in more unique factual circumstances as well including the famous Burning Man festival. 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.
Judicial use of the doctrine of total ban on recovery 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, discussed 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.”
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 even though 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.
There is one area in which the Courts have not been reluctant to apply full assumption of risk outside the sports and recreational context and that is in particular employment tasks. 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.
An example is 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).
State of Mind of Plaintiff:
A common misconception is that assumption of risk requires conscious recognition of the risk involved. Whether the plaintiff was reasonable or unreasonable in choosing to subject him or herself to the risk is irrelevant. This is because the focus is on the nature of the activity and defendant’s role in that activity, not the plaintiff’s decision-making process. The plaintiff’s subjective awareness or expectations are irrelevant and it does not matter if the plaintiff subjectively was aware of the risk or impliedly consented to relieve or excuse the defendant from a duty of care. I may not realize that scuba diving can result in severe cuts on coral in a tropic sea, but if I cut myself, that would be possibly considered as inherent in the sport.
Limitations on Doctrine:
It is vital to recall that the doctrine is limited by Defendant’s inappropriate actions that caused the injury. If a plaintiff can demonstrate the defendant unreasonably increased the risks to plaintiff over and above those inherent in the activity then liability will attach. In Fazio v. Fairbanks Ranch a musician was injured falling off a stage that had been constructed by the defendant property owner in a manner that increased the risk of falling. The stage was built so that a gap existed between the stage and the wall in the area where plaintiff fell. The court of appeal concluded that falling off stage is an inherent risk for all stage performers, and that risk cannot be eliminated entirely without altering the fundamental nature of performing on stage. Therefore, the defendant was under no duty to protect the plaintiff from this inherent risk and the assumption of risk doctrine could preclude liability. However, the assumption of risk doctrine did not apply in the instant case because it was unclear whether the configuration and construction of the stage had increased the plaintiff’s risk of injury.
Other limitations apply. The defense does not extend to conduct by the defendant that is in violation of the law, nor to actions by a defendant that were intentional or amounted to willful misconduct. The defense also may not apply where a law enacted for the safety of a worker was violated, and this contributed to the worker’s injury.
The Impact of Releases-Express Assumption of Risk:
Anyone who has scuba dived with a company, rented a sail boat, joined a basketball league, etc. has been asked to execute a release in which assumption of risk is expressly stated. How enforceable are those releases? An express assumption of risk occurs when the plaintiff, in advance, expressly consents to relieve the defendant of an obligation of conduct toward him or her and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. If one signs such a waiver, one can eliminate the right to sue the defendant. Because of the express agreement, the defendant may owe no duty to protect the plaintiff from an injury-causing risk.
There are rules that most states impose upon such a release, including California. A release must be easily readable and conspicuous and it must be, “clear, explicit and comprehensible in each of its essential details.” The language that limits liability must be stated understandably, in words that are part of the working vocabulary of the average layperson. A release does not have to be perfect, but it must be sufficient to apprise the party of the effect of signing the document. Although an enforceable release does not need to recite every conceivable risk within its intended scope nor the specific risk that caused plaintiff’s injury, the act of negligence resulting in plaintiff’s injury must be reasonably related to the object or purpose for which the release was signed.
Examples of Drafting that Caused Problems:
In Huverserian v. Catalina Scuba Luv, a scuba diver ran out of air while diving and died of cardiac arrest. His family brought a wrongful death action against the lessor of the scuba diving equipment. The diver had signed an equipment rental agreement that contained a release. The relevant portion was titled “Equipment rental agreement, liability release and assumption of risk of scuba and snorkel gear for boat dives or multiple day rentals.” It was undisputed the diver had not rented the equipment for either a boat dive or a multiple day rental. Rather, after renting the equipment the diver entered the water from shore. The court of appeal concluded the language releasing the defendant from liability was expressly limited to “boat dives or multiple day rentals.” A person reading the rental agreement who was neither a boat diver nor a multiple day renter could reasonably conclude he or she was not among the category of people who had relieved the equipment lessor of liability. The express assumption of risk doctrine did not apply.
In contrast, in Madison v. Superior Court, a release in a contract for scuba diving lessons expressly stated that it was the student's intent to exempt and relieve the defendants from liability for any personal injury related to the defendant’s scuba instruction. The student drowned under mysterious circumstances during the scuba diving class. The California court of appeal concluded the student’s “express release was sufficient to cover the particular risk of injury which resulted in his death. It was irrelevant if the student was unaware of the dangers that ultimately led to his drowning, at the time he signed the release. “Given the express provisions of the agreement, the law imposes no requirement [the student] have had a specific knowledge of the particular risk which resulted in his death. Under the agreement [the student] clearly accepted responsibility for the consequences of any act of negligence by the defendants.” (Id., 596) While the terms of a release must be clear, this “does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.”
In Grebing v. 24 Hour Fitness a customer suffered injury while exercising in a gym operated by 24 Hour Fitness. The clip for a “low row machine” failed, causing the handlebar to break free from a cable and strike plaintiff in the forehead. Note that before the accident, another gym member had warned a manager that the clip appeared “crooked.” The California court of appeal concluded a written release signed by the plaintiff clearly stated defendant would not be liable for its own negligence: “24 Hour ... will not be liable for any injury ... resulting from any negligence of 24 Hour or anyone on 24 Hour's behalf…” Although the plaintiff argued the “release did not cover failure to properly assemble or maintain the low row machine,” the court of appeal concluded the release “expressly extends to any injury while using any equipment at a 24 Hour facility.” As such, the plaintiff had “assumed responsibility for the risks arising from his use of 24 Hour's facilities, services, equipment, or premises.” They were not liable even though advised of that danger.
Drafting the Assumption of Risk Release and Common Sense:
A carefully crafted release with all the statutory requirements included may bar a plaintiff’s claim for personal injuries and should be part of every protocol for every high-risk business or property owner. Even without the release, the expansion of the primary assumption of risk doctrine to nonrecreational activities in California may supply a secondary defense for owners or occupiers of land or operators of businesses that include risk. The release cannot hurt and can add the extra protection that makes sense. When combined with adequate liability insurance and a limited liability entity, even businesses with inherent risk can be operated without undue risk.
That said, it must be admitted that certain businesses and certain actions can result in liability regardless of the release and the assumption doctrine and can even void insurance coverage. Key is to make sure the assumption mirrors the activity advertised or promoted and that none of the agents involved exceed the boundaries of expected actions and risks. An employee or tenant that “shows off” rather than shows how to do a recreational sport is a danger to all.
One client put it well. He wrote, “It’s just common sense. If you hire me to show you thrills, I show you thrills with all the protections I can put into the mix. If I increase the thrills by increasing the danger beyond what is reasonable and what you should expect…well, shame on me and I am going to be sued. It’s not rocket science.”