Allen P. Wilkinson
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Allen is a retired lawyer, with many years of experience involving personal injury and medical malpractice cases
Reza Torkzadeh
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11601 Wilshire Blvd Ste 500
Los Angeles , CA 90025
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Thomas Jefferson SOL; San Diego CA
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Prior to the Supreme Court’s seminal decision in Li v. Yellow Cab Co. ((1975) 13 Cal. 3d 804.), California followed the common law rule that except where the defendant had the last clear chance to avoid the accident, the plaintiff’s contributory negligence or assumption of risk barred his recovery against a defendant whose negligence injured him.
In Li, the Supreme Court abolished the all-or-nothing contributory negligence defense and replaced it with the pure form of comparative fault. Under this standard, the plaintiff’s own negligence in causing the accident was not barred but reduced in proportion to his own negligence. Thus, if the jury found that the plaintiff’s damages amounted to $500,000, but also found that the plaintiff was 25% at fault, the plaintiff’s recovery would be reduced by $125,000, for a net total of $375,000.
As for assumption of risk, Li ruled that if the plaintiff had unreasonably encountered a specific known danger, his award would be reduced by the percentage attributable to his own fault. On the other hand, if the plaintiff had reasonably encountered a specific known danger, his action would be completely barred by the assumption of risk doctrine. (Ordway v. Superior Court (1988) 198 Cal. App. 3d 98, 102.) Prior to Li, there was generally no extensive discussion among the courts to determine which type of assumption of risk applied in a particular case, as in either situation the action would have been barred under the principles of contributory fault.
In some cases, the defenses of comparative negligence and assumption of risk overlap to the point that identical facts may give rise to both defenses. (Fonseca v. Orange County (1972) 28 Cal. App. 361, 369.) The plaintiff’s conduct in encountering a known risk may in itself be unreasonable, because the danger is out of all proportion to the advantage which he is seeking to obtain. His conduct is a form of comparative negligence, in which the negligence consists in making the wrong choice and voluntarily encountering a known reasonable risk. In such cases, the defenses of assumption of risk and comparative negligence overlap and are as intersecting circles with a considerable area in common, where both exist and neither excludes the possibility of the other.
The decisions following Li interpreted it as subsuming into the comparative fault scheme those cases in which the plaintiff had acted unreasonably in encountering a specific known risk but retained the assumption of risk doctrine as a complete bar to recovery where the plaintiff acted reasonably in encountering a specific known risk. While a plaintiff who acted unreasonably had his recovery reduced, a plaintiff who acted reasonably in encountering a known risk would be barred from any recovery.
Li did not specifically determine whether a defense based on reasonable assumption of risk survived the adoption of comparative fault. Of the appellate decisions that addressed this issue, all but one (Segoviano v. Housing Authority (1983) 143 Cal. App. 3d 162 (ruling that only express assumption of risk remained a viable defense after Li) held that the doctrine of reasonable implied assumption of risk survived in the era of comparative fault. (See, e.g., Ordway v. Superior Court (1988) 198 Cal. App. 3d 98, 102.).
The doctrine of reasonable implied assumption of risk is only another way of stating that the defendant’s duty of care has been reduced in proportion to the hazards attendant in the event. Where no duty of care is owed with respect to a particular mishap, there can be no breach; consequently, as a matter of law, a personal injury plaintiff who has voluntarily and reasonably assumed the risk cannot prevail. Stated another way, the individual who knowingly and voluntarily assumes the risk, whether for recreational enjoyment, economic reward, or some similar purpose, is deemed to have agreed to reduce the defendant’s duty of care. (Ordway v. Superior Court (1988) 198 Cal. App. 3d 98, 104.)
The Ordway court concluded that the doctrine of reasonable implied assumption of risk remained viable after Li and, where applicable, provided a complete defense to a cause of action for personal injuries. This, the court stated, was so because the doctrine of reasonable implied assumption of risk, unlike its unreasonable sibling, involved a much narrower opening for a plaintiff’s recovery of damages. (Ordway, supra, 198 Cal. App. 3d 98, 107.)
Before Knight v. Jewett ((1992) 3 Cal. 4th 296.) and its companion case Ford v. Gouin ((1992) 3 Cal.4th 399.), the defense of implied assumption of risk was found in two distinct forms: (1) Where the plaintiff had acted unreasonably in voluntarily encountering a known risk of injury (Unreasonable Implied Assumption of Risk); and (2) where the plaintiff had acted reasonably in voluntarily encountering a known risk or injury (Reasonable Implied Assumption of Risk). Where the plaintiff had unreasonably encountered a specific known risk, this was treated as comparative negligence and the plaintiff’s recovery was accordingly reduced by the percentage of his fault. But if the plaintiff had reasonably encountered a specific known risk, his recovery was barred. (Li v. Yellow Cab Co., supra, 13 Cal. 3d 804).
In Knight, the Supreme Court pointed out the anomaly of a rule which completely barred a plaintiff who had acted reasonably while only reducing the recovery of a plaintiff who had acted unreasonably. The high court reasoned that the defendant’s duty and therefore liability should not hinge upon the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport the defendant is engaged in and the relationship of the defendant and plaintiff to that activity or sport. The Court criticized the concepts of reasonable implied assumption of risk and unreasonable assumption of risk as “more misleading than helpful,” and substituted “primary assumption of risk” and “secondary assumption of risk” in their places. Although aware of the apparent anomaly of a rule under which a plaintiff who acted reasonably was completely barred from recovery while a plaintiff who acted unreasonably only had his or her recovery reduced, the Supreme Court found that the post-Li decisions nonetheless have concluded that this distinction and consequence were intended by the Li court. (Knight v. Jewett (1992) 3 Cal. 4th 296, 306-07.)
Primary and secondary assumption of risk
There are two types of implied assumption of risk, one of which is really a form of comparative negligence and reduces the amount of the plaintiff’s recovery (secondary assumption of risk), while the other type of assumption of risk bars the plaintiff’s recovery completely (primary assumption of risk). Prior to Li, there was no in-depth discussion among the courts to determine which type of assumption of risk applied in a particular case, since in either situation the action would be barred under the principles of contributory negligence.
In a “primary assumption of risk” situation, no liability attaches because the defendant did not owe the plaintiff a duty; the reasonableness or unreasonableness of the plaintiff in encountering the risk is irrelevant. In a “secondary assumption of risk” situation, the defendant owes a duty of care to the plaintiff, but the plaintiff is injured when he unreasonably encounters a risk of injury caused by the defendant’s breach of that duty, and the plaintiff’s recovery is therefore subject to reduction.
The Supreme Court summarized its new rules in Knight as follows: “In cases involving ‘primary assumption of risk’ – where, by virtue of the nature of the activity and 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 [of assumption of risk] 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 the 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, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” (Knight v. Jewett, supra, 3 Cal. 4th 296, 314-15. See also Kahn v. East Side (2003) 31 Cal. 4th 990, 103-04.)
The term assumption of risk has been used in connection with two classes of cases: those in which the issue to be resolved was whether the defendant actually owed the plaintiff a duty of care (primary assumption of risk) and those in which the defendant had breached a duty of care but where the issue was whether the plaintiff had chosen to face the risk of harm presented by the defendant’s breach of duty (secondary assumption of risk). In the latter class of cases, the issue could be resolved by applying the doctrine of comparative fault, and the decision to face the risk would not operate as a complete bar to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk function as a form of contributory negligence. (Kahn, supra, 31 Cal. 4th 990, 1003-04; Knight, supra, 3 Cal. 4th 296, 303-04, 308, 310-11.)
To impose liability on a coparticipant for “normal and energetic conduct” – even careless conduct – while playing could chill vigorous participation in the sport. The cases have recognized that, in an active sport, even when a participant’s conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in an activity. Accordingly, the Supreme Court has ruled that in an active sport, coparticipants breach a duty of care to each other only if they intentionally injure another player or engage in conduct that is so reckless to be totally outside the range of the ordinary activity involved in the sport. (Kahn, supra, 31 Cal. 4th 990, 1004-05; Knight, supra, 3 Cal. 4th 296, 318-20.). The object to be served by the doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity.
In Knight, the plaintiff was injured during an impromptu touch football game during half-time of the Super Bowl. The plaintiff was injured when a member of the opposing side knocked her down and stepped on her hand, ultimately leading to the amputation of her little finger. The Supreme Court held that a participant in an active sport breaches a legal duty of care to other participants – i.e., engages in conduct that properly may subject him or her to financial liability – only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Knight v. Jewett, supra, 3 Cal. 4th 296, 320.).
Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civil Code section1714, subd. (a)), some activities – and, specifically, many sports – are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. In a game of touch football, for example, there is an inherent risk that players will collide; to impose a general duty on coparticipants to avoid the risk of harm would work a basic alteration – or cause abandonment – of the sport. (Kahn, supra, 31 Cal. 4th 990, 1003).
In Knight, the Court explained that the general rule does not apply to coparticipants in a sport, where conditions or conduct often are an integral part of the sport itself. Defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself because the plaintiff assumes those risks by participating in the activity. But even when the assumption of the risk doctrine applies, defendants do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. (Knight, supra, 3 Cal. 4th 296, 315-16.)
Although Knight was a plurality decision, subsequent decisions of the Supreme Court have recognized it as authoritative. (Shin v. Ahn (2007) 42 Cal. 4th 482; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148; Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990; Cheong v. Antabilin (1997) 16 Cal. 4th 1063.).
Primary assumption of the risk occurs when a party voluntarily participates in a sporting event or activity involving inherent risk. Primary assumption of the risk negates duty and constitutes a complete bar to recovery. Whether primary assumption of the risk applies depends on the nature of the sport or activity in question and the parties’ relationship to that activity. In the context of sports, the question turns on whether a given injury is within the inherent risk of the sport. Primary assumption of the risk does not apply where the defendant’s conduct increased the inherent risks in that activity. (Kahn, supra, 31 Cal. 4th 990,)
In Ford, the plaintiff was seriously injured while waterskiing barefoot and backwards when the back of his head struck a tree limb that extended over the channel from one of the riversides. The plaintiff sued the driver of the boat that was towing him, alleging that the defendant was negligent in driving the boat too close to the riverbank. The plaintiff contended that, unlike in Knight, he was not involved in a competitive sport but rather was involved in a cooperative sport. The court rejected this difference, stating that although most of the prior authorities cited in Knight involved sports that are played by competitive teams, the rationale of those decisions was equally applicable to an active sport such as waterskiing, even when it is engaged on a noncompetitive basis. (Ford v. Gouin, supra, 3 Cal. 4th 339, 345.) The court went on to state that holding ski boat drivers liable for their ordinary negligence might well have a general deleterious effect on the nature of the sport of waterskiing as a whole. Additionally, imposing such liability might well deter friends from voluntarily assisting one another in such potentially risky sports. Accordingly, the general rule limiting the duty of care of a co-participant in active sports activity, such as a ski boat driver towing a water-skier, would be liable only if he had intended to injure the plaintiff or acted so recklessly as to be totally outside the range of the ordinary activity involved in the sport. The court concluded that summary judgment in favor of the defendant was properly entered. (Ford v. Gouin, supra, 3 Cal. 4th 339, 345.)
A defendant’s duty depends on the nature of the sport or activity and its inherent risks. A defendant has no duty to eliminate the risks inherent in the sport; however, a defendant may not increase the risks over and above those inherent in the sport. A participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another participant or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. (Ford v. Couin, supra, 3 Cal. 4th 339, 342; Knight v. Jewett, supra, 3 Cal. 4th 296, 320.) A limited duty of care in an active sports situation is based on the reasoning that vigorous participation in the sport likely would be chilled, and, as a result the nature of the sport likely would be altered, if liability were to be imposed on a sports participant for ordinary careless conduct. (Ford v. Gouin, supra, 3 Cal. 4th 339, 345; Knight v. Jewett, supra, 3 Cal. 4th 296, 318-19; Hemady v. Long Beach Unified School Dist. (2006) 143 Cal. App. 4th 566,)
The assumption of risk doctrine operates as a complete bar to a plaintiff’s action only in instances in which, in view of the nature of the activity at issue and the parties’ relationship to that activity, the defendant’s conduct did not breach a legal duty of care owed to the plaintiff either intentionally injuring another participant or engaging in conduct so reckless as to bring it totally outside the range of the ordinary activity involved in the sport. A co-participant in an active sport ordinarily bears no liability for an injury resulting from conduct in the course of the sport that is merely careless or negligent. (Ford v. Gouin, supra, (1992) 3 Cal. 4th 339, 342; Knight v. Jewett, supra, 3 Cal. 4th 296, 318.)
In the sports setting, conditions or conduct that otherwise might be viewed as dangerous are often an integral part of the sport itself. Some sports have inherent dangers and if tort liability rested on whether those dangers were removed, the fundamental nature of the sport would be altered. For example, although moguls on a ski run pose a risk of harm to skiers that might not exist if these configurations were removed, for some people part of the excitement or challenge of skiing is navigating the moguls. If the moguls were eliminated, the nature of skiing would not be as exciting or challenging. The challenge and risks posed by the moguls are part of the sport of skiing, and a ski resort has no duty to eliminate them. In this respect, the nature of a sport is highly relevant in determining the duty of care, if any, owed by the particular defendant. (Knight v. Jewett, supra, 3 Cal. 4th 296, 316-18; Hemady v. Long Beach Unified School Dist. (2006) 143 Cal. App. 4th 566, 569-70.)
If tort liability in the sport of touch football depended on whether players conducted themselves under the usual concepts of negligence law, this could chill the vigorous activity of the participants. (Hemady v. Long Beach Unified School Dist., supra, 143 Cal. App. 4th 566, 573-74.)
In Avila v. Citrus Community College Dist. ((2006) 38 Cal. 4th 148.), in a college baseball game, the pitcher hit a batter on the other team. In the next inning, the defendant pitcher allegedly retaliated by intentionally hitting a batter with a “beanball.” The court held that the suit was barred by the primary assumption of risk doctrine. The court stated that while it was against the rules of baseball to intentionally throw at a batter, being intentionally thrown at was a fundamental part and inherent risk of the sport of baseball, and it was not the function of tort law to police such conduct. (38 Cal. 4th 148, 165.)
In Cheong v. Antablin ((1997) 16 Cal. 4th 1063), the plaintiff was a snow skier who was injured when another skier turned and unintentionally ran into him. The court held that a skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another skier for simple negligence. Because there was no evidence that the defendant acted recklessly or intentionally injured the plaintiff the plaintiff could not prevail.
In Shin v. Ahn ((2007) 42 Cal. 4th 482, 488) the high court held that the primary assumption of risk doctrine applies to noncontact sports such as golf. Being struck by a carelessly hit golf ball is an inherent risk of the sport. The doctrine applies to players in the same group as well as golfers playing in a different group. Golfers have a limited duty of care to other players, breached only if they intentionally injure another player or engage in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. The court stated that many factors will bear on whether a golfer’s conduct was reasonable, negligent, or reckless. Relevant circumstances may include the golfer’s skill level; whether topographical undulating, trees, or other impediments obscured his view; what steps he took to determine whether anyone was within range; and the distance and angle between the plaintiff and the defendant.
In Hemady v. Long Beach Unified School Dist. ((2006) 143 Cal. App. 4th 566.), during physical education golf class, a 12-year-old seventh grade student was struck in the face with a golf club by another student. The court ruled that being hit on the head by a golf club is not an inherent risk in golf; therefore, a conventional duty analysis was called for.
INSTRUCTORS AND COACHES
When a person is learning a new sport or trying to move their level of competence in the sport to the next level, the coach or instructor must be able to “push” the student beyond the student’s present ability or the student would never improve. To encourage coaches and instructors to fill their roles, they are therefore relieved of the usual prohibitions of negligence law. (Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990, 1006-07.) For an instructor or coach to be held liable, the plaintiff is required to allege and prove that the coach or instructor had the student perform beyond the student’s capacity or without providing adequate instruction, and the coach or instructor acted with the intent to cause a student’s injury, or that the instructor acted recklessly in the sense that the instructor’s conduct was totally outside the range of the ordinary activity involved in teaching or coaching the sport. (Kahn v. East Side Union High School Dist., supra, 31 Cal. 4th 990, 1011.
As a general matter, although the nature of the sport and the relationship of the parties to it and to each other remain relevant, a student’s inability to meet an instructor’s legitimate challenge is a risk that is inherent in learning a sport. To impose a duty to mitigate the inherent risks of learning a sport by refraining from challenging a student could have a chilling effect on the enterprise of teaching and learning skills that are necessary to the sport. Especially at a competitive level, the chilling effect is undesirable. (Kahn v. East Side Union High School Dist., supra, 31 Cal. 4th 990, 1006-07.
That an instructor might ask a student to do more than the student can manage is an inherent risk of the activity. Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to stretch, and thus to learn, and would have greatly deleterious effects on the sport as a whole. (Kahn, supra, 31 Cal. 4th at 1007; Bushnell v. Japanese-American Religious & Cultural Center (1996) 43 Cal. App. 4th 525, 533-34.)
The question, as always, is whether the imposition of liability would chill vigorous participation in the activity and thereby alter the sport. To instruct is to challenge, and the very nature of challenge is that it will not always be met. It is not unreasonable to require a plaintiff who has chosen to be instructed in a particular activity to bear the risk that he or she will not be able to meet the challenge posed by the instructor, at least in the absence of intentional misconduct or recklessness on the part of the instructor. Any other rule would discourage instructors from asking their students to do any more than they have in the past, would have a chilling effect on instruction, and thus would have a negative impact on the very purpose for seeking instruction: mastering the activity. (Bushnell, supra, 43 Cal. App. 4th 525, 534.)
The doctrine of primary assumption of risk in the sports setting is to avoid recognizing a duty of care when to do so would tend to alter the nature of an active sport or chill vigorous participation in the activity. This concern applies to the process of learning to become competent or competitive in such a sport. Novices and children need instruction if they are to participate and compete, and many appellate decisions have refused to define a duty of care in terms that would inhibit adequate instruction and learning or eventually alter the nature of the sport. Accordingly, the standard set forth in Knight generally should apply to sports instructors, keeping in mind, of course, that different facts are of significance in each setting.
In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student’s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was totally outside the range of the ordinary activity involved in teaching or coaching the sport. (Kahn, supra, 31 Cal. 4th 990, 1011.)
In Kahn, the Red Cross teaching manual – which the coach said he had followed – submitted by the plaintiff acknowledged that the principal danger faced by persons learning to compete in swimming is in the shallow-water dive. The risk presented is not simply that the swimmer might suffer a bruise or a broken arm; the risk is that the swimmer may sustain serious head and spinal cord injuries by striking the bottom of the pool. The Red Cross safety manual for swim coaches – whose recommendations the instructor stated he followed – stated that diving into water less than five feet deep is dangerous and that 95 percent of swimming injuries occur in water five feet deep or less.
It is for the court to decide whether an activity is an active sport, the inherent risks of that sport, and whether the defendant has increased the risks of the activity beyond the risks inherent in the sport. (American Golf Corp. v. Superior Court ((2000) 79 Cal. App. 4th 30, 37. See also Ford v. Polaris Industries, Inc. (2006) 139 Cal. App. 4th 755, 771.) The question of the existence and scope of the defendant’s duty is one of law to be decided by the court, not a jury, and therefore it is generally amenable to resolution by summary judgment. (Kahn v. East Side Union High Although Knight was a plurality decision, subsequent decisions of the Supreme Court have recognized it as authoritative. (Shin v. Ahn (2007) 42 Cal. 4th 482; Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148; Kahn v. East Side Union High School Dist. (2003) 31 Cal. 4th 990; Cheong v. Antabilin (1997) 16 Cal. 4th 1063.).