By Michael Paul Thomas
Edited by Barbara Kate Repa
The doctrine of assumption of risk is rooted in an ancient maxim: He who consents to an act is not wronged by it. Traditionally, the doctrine has been asserted as a complete defense in negligence actions in which a plaintiff voluntarily accepted a specific, known, and appreciated risk created by a defendant's breach of a duty.
But despite its long history, there has been rampant confusion both in defining and applying the assumption of risk defense. Indeed, 60 years ago U.S. Supreme Court Justice Felix Frankfurter described it as "an excellent illustration of the extent to which uncritical use of words bedevils the law." Tiller v Atlantic Coast Line R. Co. (1943) 318 US 54, 68.
Questions still remain as the courts scramble to apply the doctrine to a variety of facts.
A New Beginning
The modern history of assumption of risk in California began nearly three decades ago. In Li v Yellow Cab Co. (1975) 13 C3d 804, the state Supreme Court abolished the all-or-nothing rule of contributory negligence and replaced it with a system of comparative negligence. In analyzing the status of assumption of risk in the new system, the Li court observed that the defense overlapped with contributory negligence and was made up of two distinct categories.
The first category, known as "unreasonable implied assumption of risk," occurred when a plaintiff carelessly chose to encounter a known risk-for example, when a circus patron was allowed to wander close to a lion's cage, foolishly reached in to pet the beast, and was bitten. The court opined that that was in reality a form of contributory negligence and completely subsumed by the comparative-negligence system. The second category, known as "reasonable implied assumption of risk," applied when a plaintiff performed a duty owed to a defendant, such as when a circus performer put his head into a lion's mouth during a show. The Li court stated that those situations involved merely "a reduction of defendant's duty of care."
After Li, controversy quickly arose about whether reasonable implied assumption of risk remained viable as a complete defense in the new comparative-negligence system.
Shades of Gray
The Fifth District Court of Appeal was the first to grapple with the issue in Segoviano v Housing Authority of Stanislaus (1983) 143 CA3d 162. In Segoviano, the plaintiff was injured during a flag football game sponsored by the defendant housing authority. In analyzing the propriety of the comparative-negligence instructions given to the jury, the court reasoned that the court in Li must have intended to abolish both unreasonable and reasonable implied assumption of risk as complete defenses.
Segoviano was not widely followed-and was directly rejected by the Fourth District Court of Appeal in Ordway v Superior Court (1988) 198 CA3d 98. In Ordway, a jockey was injured during a race when another jockey caused a collision by crossing lanes. The court concluded that reasonable implied assumption of risk-in that case the risk "inherent in a sport where large and swift animals bearing human cargo are locked in close proximity under great stress and excitement"-survived as a complete defense to negligence actions.
A Doctrine Transformed
In 1992 the California Supreme Court sought to resolve the discord over the proper application of the assumption of risk doctrine in the companion cases of Knight v Jewett (3 C4th 296) and Ford v Gouin (3 C4th 339).
In Knight the plaintiff seriously injured her finger when she collided with the defendant in an impromptu touch football game played during halftime at a Super Bowl party. The court held that because the rough play was not outside the range of activity inherent in touch football, the players owed no duty of care to one another.
Nevertheless, the Knight court rejected both the Segoviano and Ordway analyses, noting that both of these decisions went astray by focusing on the reasonable/unreasonable assumption of risk dichotomy. The court instead reviewed the Li decision-contrasting assumption of risk cases involving contributory negligence, which should be merged into the comparative system, with cases involving a reduction of a defendant's duty of care, in which assumption of risk remained a complete defense.
Refocusing the analysis on a defendant's duty rather than a plaintiff's conduct, Knight distinguished between primary and secondary assumption of risk. Primary assumption of risk embodies a legal conclusion that the defendant has no duty to protect the plaintiff from a particular risk. In such cases, if no duty of care is owed, the plaintiff's assumption of risk is a complete defense. Secondary assumption of risk, in contrast, refers to instances in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by a breach of the duty. Secondary assumption of risk cases are merged into the comparative-negligence scheme.
Secondary assumption of risk in the comparative-negligence scheme can best be exemplified in the old legal saw that "a drunken man is as much entitled to a safe street as a sober one, and much more in need of it" (Robinson v Pioche (1855) 5 C 460, 461), so sidewalks should be constructed with safety in mind. If they are negligently built, inebriation will not bar a pedestrian's lawsuit for injury, although it may reduce recovery. It is up to a jury to weigh the comparative responsibility for injury in such a case.
More Than How They Play the Game
The Knight court found that the defendant's duty in the sports context depends on the nature of the sport itself, as well as the defendant's role in it. The court observed that although defendants generally have no legal duty to eliminate risks inherent in a sport, they generally must use due care not to increase those risks. The court also cited cases defining the steps a sponsoring business entity should take to decrease risks without altering the nature of a sport.
The court found that vigorous participation in sports would be chilled if liability were imposed on a participant in cases of ordinary careless conduct. Consequently, it held liability may be imposed on a participant only in cases of intentionally harmful conduct, or conduct so reckless as to be totally outside the range of ordinary activity involved in the sport.
The companion Ford case involved a plaintiff who was injured when his head struck a tree limb extending over the channel where he was water skiing barefoot and backward. Summary judgment was granted in favor of the defendant boat driver under a reasonable implied assumption of risk analysis.
In affirming, the high court rejected the plaintiff's argument that Knight did not apply to "cooperative" sports. It held that the Knight analysis also applied to participants in noncompetitive but active sports activities, such as ski boat drivers. The court also rejected the plaintiff's argument that a statute dealing with water skiing safety created a rebuttable presumption that the defendant had violated his duty of care. The court held that such a presumption exists only when a statute shows a clear intent to modify common law assumption of risk principles.
Beyond the Bleachers
Since the Knight and Ford decisions, the state Supreme Court has revisited and confirmed the principles set out in those cases. See Neighbarger v Irwin Indus., Inc. (1994) 8 C4th 532; Parsons v Crown Disposal Co. (1997) 15 C4th 456; Cheong v Antablin (1997) 16 C4th 1063, 1067.
Although both Knight and Ford arose in a sports context, those cases provided a framework for evaluating assumption of risk issues in a variety of situations. See Gordon v Havasu Palms, Inc. (2001) 93 CA4th 244 (pilot who crashed plane sued airstrip owner); Rosenbloom v Hanour Corp. (1998) 66 CA4th 1477 (aquarium company employee bitten by shark); Herrle v Estate of Marshall (1996) 45 CA4th 1761 (convalescent hospital nurse's aid attacked by patient). Nevertheless, because of the inherent risk that is a part of almost every sport, the overwhelming body of case law dealing with assumption of risk issues arises in the sports context.
Knight's primary and secondary assumption of risk analyses have given rise to several corollary principles. For example, primary assumption of risk may apply when the parties' relationship is as student and instructor or coach (Balthazor v Little League Baseball, Inc. (1998) 62 CA4th 47, 50); when the participant is a minor (Wattenbarger v Cincinnati Reds, Inc. (1994) 28 CA4th 746); when injury occurs during school-sponsored extracurricular activities (Lilley v Elk Grove Unified School Dist. (1998) 68 CA4th 939, 946); when the injury occurs in practice rather than in play (Staten v Superior Court (1996) 45 CA4th 1628); and when an instructor or coach negligently supervises a group (Rodrigo v Koryo Martial Arts (2002) 100 CA4th 946).
If a risk is inherent in an activity, the fact that a defendant had a means to remedy the danger does not necessarily impose a duty to do so. Similarly, no duty is created because safer materials are available from which to fashion some equipment. Connelly v Mammoth Mountain Ski Area (1995) 39 CA4th 8, 13. Also, industry standards may be used to define the nature of a sport. Balthazor v Little League Baseball, Inc. at 47, 52 (batting helmet without a face guard); Ferrari v Grand Canyon Dories (1995) 32 CA4th 248, 257 (whitewater raft with exposed metal frame).
Primary assumption of risk may still apply when a defendant's conduct has increased the severity of an injury suffered in an inherently risky sport. Calhoon v Lewis (2000) 81 CA4th 108, 115 (skateboarder impaled on pipe). However, when parties have no relationship and act independently, a defendant generally has no duty to avoid increasing the risks in the activity. Parsons v Crown Disposal Co. (1997) 15 C4th 456, 482-483.
The What and When of Inherent Risk
When addressing the applicability of primary assumption of the risk, appellate courts look to the nature of the activity and the role of each of the parties to decide, as a matter of public policy, whether the defendant should owe the plaintiff a duty of care. Shannon v Rhodes (2001) 92 CA4th 792, 795. Courts agree that a defendant owes no duty to protect a plaintiff against risks inherent in a particular sport that a plaintiff plays voluntarily. Sanchez v Hillerich & Bradsby Co. (2002) 104 CA4th 703, 712.
In determining exactly what risks are inherent in a given activity or sport, the appellate courts have taken various approaches. For example, one court asserted that the key is "whether the risk which led to plaintiff's injury involved some feature or aspect of the game which is inevitable or unavoidable in the actual playing of the game." Lowe v California League of Prof. Baseball (1997) 56 CA4th 112, 123 (team mascot's antics not integral to baseball).
Other courts have considered the range of ordinary activity in a sport to test whether a specific danger is inherent. See Freeman v Hale (1994) 30 CA4th 1388, 1393-1394 (alcohol consumption not an ordinary activity involved in skiing). Ultimately the analysis comes down to whether eliminating a risk would "chill vigorous participation" in the sport and alter the fundamental nature of the activity. See Regents of University of California v Superior Court (1996) 41 CA4th 1040, 1046.
Questions without Answers
Some appellate courts have noted that since the issue of duty is a question of law, it is for the court to decide not only the risks inherent in a sport but also whether a defendant has increased those risks. See American Golf Corp. v Superior Court (2000) 79 CA4th 30, 36. But other courts have indicated the issue of whether a defendant has increased inherent risks is for a jury to decide. See Campbell v Derylo (1999) 75 CA4th 823, 828.
Courts are also split on the use of expert opinion in assumption of risk cases. At least one appellate court-the First District-has concluded that Knight mandates that questions of duty in primary assumption of risk cases be resolved by the trial court without input from experts. Staten v Superior Court at 1636. Others have simply assumed expert testimony is admissible, at least when a court has determined the inherent risks of a sport as a legal issue but the plaintiff seeks to prove the defendant increased the risk. See Branco v Kearny Moto Park, Inc. (1995) 37 CA4th 184, 193. Still other cases have held that expert opinions may inform the court on both the question of inherent risks and whether the defendant increased them. See Huffman v City of Poway (2000) 84 CA4th 975, 995, fn. 23.
Courts have also been uneven in applying Knight's reference to the steps a sponsoring business entity reasonably should be obligated to take to decrease the risks without altering the nature of the sport.
The Fourth District Court of Appeal has used a "minimize the risk" analysis twice. In Morgan v Fuji Country USA, Inc. (1995) 34 CA4th 127, the court held that the owner of a golf course had an obligation to design a course that would decrease the risk of players being hit by golf balls. In Saffro v Elite Racing, Inc. (2002) 98 CA4th 173, the court held that a race organizer staging a marathon had a duty to minimize the risk to participants of dehydration and dangerously decreased sodium levels by providing adequate water and electrolyte fluids along the 26-mile course.
However, other courts have completely ignored the minimize-the-risk reference in Knight. For example, in Nemarnik v Los Angeles Kings Hockey Club (2002) 103 CA4th 631, the plaintiff alleged she was struck in the mouth by a hockey puck flying off the ice because the stadium allowed a huge crowd to congregate in front of her fourth-row seat, blocking both her view and any ability to avoid the puck. Despite the fact that the stadium had a policy requiring its staff to prevent people from blocking views due to the risk of hockey pucks flying into the stands during play, the court did not conduct a minimize-the-risk analysis before barring the plaintiff's claim under the assumption of risk defense.
Hope for a Less Murky Future
The California Supreme Court has granted review in an assumption of risk case in which a 14-year-old high-school swimmer claims her coach required her to dive into the shallow end of a pool at a swim meet without proper training or experience, which resulted in her becoming a quadriplegic. Kahn v East Side Union High School Dist. (2002) 96 CA4th 781; review granted June 12, 2002, S105735.
Many Californians once more hold the hope that the high court's decision in this case will provide more definitive guidance on the proper application of primary assumption of risk. In particular, the court may further clarify the doctrine with regard to such issues as determining "inherent risk," as well as whether inadequate warning, instruction, practice, or supervision increase an inherent risk in a particular situation.
Michael Paul Thomas (firstname.lastname@example.org) is an attorney and mediator in Newport Beach. He is the lead author of California Premises Liability (West, 1996 and supp. 2002).