CACI No. 451. Affirmative Defense - Contractual Assumption of Risk
Judicial Council of California Civil Jury Instructions (2023 edition)
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451.Affirmative Defense - Contractual Assumption of Risk
[Name of defendant] claims that [name of plaintiff] may not recover any
damages because [he/she/nonbinary pronoun] agreed before the incident
that [he/she/nonbinary pronoun] would not hold [name of defendant]
responsible for any damages.
If [name of defendant] proves that there was such an agreement and that
it applies to [name of plaintiff]’s claim, then [name of defendant] is not
responsible for [name of plaintiff]’s harm[, unless you find that [name of
defendant] was grossly negligent or intentionally harmed [name of
plaintiff]].
[If you find that [name of defendant] was grossly negligent or
intentionally harmed [name of plaintiff], then the agreement does not
apply. You must then determine whether [he/she/nonbinary pronoun/it] is
responsible for [name of plaintiff]’s harm based on the other instructions
that I have given you.]
New September 2003; Revised December 2011
Directions for Use
This instruction sets forth the affirmative defense of express or contractual
assumption of risk. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [120
Cal.Rptr.3d 90].) It will be given in very limited circumstances. Both the
interpretation of a waiver agreement and application of its legal effect are generally
resolved by the judge before trial. The existence of a duty is a question of law for
the court (Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 719 [183 Cal.Rptr.3d
234]), as is the interpretation of a written instrument if the interpretation does not
turn on the credibility of extrinsic evidence. (Allabach v. Santa Clara County Fair
Assn., Inc. (1996) 46 Cal.App.4th 1007, 1011 [54 Cal.Rptr.2d 330].)
However, there may be contract law defenses (such as fraud, lack of consideration,
duress, unconscionability) that could be asserted by the plaintiff to contest the
validity of a waiver. If these defenses depend on disputed facts that must be
considered by a jury, then this instruction should also be given.
Express assumption of risk does not relieve the defendant of liability if there was
gross negligence or willful injury. (See Civ. Code, § 1668.) However, the doctrine of
primary assumption of risk may then become relevant if an inherently dangerous
sport or activity is involved. (See Rosencrans v. Dover Images, Ltd. (2011) 192
Cal.App.4th 1072, 1081 [122 Cal.Rptr.3d 22].)
If there are jury issues with regard to gross negligence, include the bracketed
language on gross negligence. Also give CACI No. 425, “Gross Negligence”
Explained. If the jury finds no gross negligence, then the action is barred by express
assumption of risk unless there are issues of fact with regard to contract formation.
338
Sources and Authority
• Contract Releasing Party From Liability for Fraud or Willful Injury is Against
Public Policy. Civil Code section 1668.
• “[P]arties may contract for the release of liability for future ordinary negligence
so long as such contracts do not violate public policy. ‘A valid release precludes
liability for risks of injury within the scope of the release.’ ” (Anderson v.
Fitness Internat., LLC (2016) 4 Cal.App.5th 867, 877 [208 Cal.Rptr.3d 792],
internal citations omitted.)
• “With respect to the question of express waiver, the legal issue is not whether
the particular risk of injury appellant suffered is inherent in the recreational
activity to which the Release applies [citations], but simply the scope of the
Release.” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 27 [236
Cal.Rptr.3d 682], original italics.)
• “Express assumption occurs when the plaintiff, in advance, expressly consents
. . . to relieve the defendant of an obligation of conduct toward him, and to take
his chances of injury from a known risk arising from what the defendant is to do
or leave undone. . . . The result is that . . . being under no duty, [the defendant]
cannot be charged with negligence.” (Saenz v. Whitewater Voyages, Inc. (1990)
226 Cal.App.3d 758, 764 [276 Cal.Rptr. 672], internal citations omitted.)
• “While often referred to as a defense, a release of future liability is more
appropriately characterized as an express assumption of the risk that negates the
defendant’s duty of care, an element of the plaintiff’s case.” (Eriksson, supra,
233 Cal.App.4th at p. 719.)
• “[C]ases involving express assumption of risk are concerned with instances in
which, as the result of an express agreement, the defendant owes no duty to
protect the plaintiff from an injury-causing risk. Thus in this respect express
assumption of risk properly can be viewed as analogous to primary assumption
of risk.” (Knight v. Jewett (1992) 3 Cal.4th 296, 308-309, fn. 4 [11 Cal.Rptr.2d
2, 834 P.2d 696].)
• “ ‘ “It is only necessary that the act of negligence, which results in injury to the
releaser, be reasonably related to the object or purpose for which the release is
given.” ’ . . . ‘An act of negligence is reasonably related to the object or
purpose for which the release was given if it is included within the express
scope of the release.’ ” (Eriksson, supra, 233 Cal.App.4th at p. 722.)
• “Although [decedent] could not release or waive her parents’ subsequent
wrongful death claims, it is well settled that a release of future liability or
express assumption of the risk by the decedent may be asserted as a defense to
such claims.” (Eriksson, supra, 233 Cal.App.4th at p. 725.)
• “[E]xculpatory clause which affects the public interest cannot stand.” (Tunkl v.
Regents of Univ. of California (1963) 60 Cal.2d 92, 98 [32 Cal.Rptr. 33, 383
P.2d 441].)
• “In Tunkl, our high court identified six characteristics typical of contracts
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affecting the public interest: ‘ “[1] It concerns a business of a type generally
thought suitable for public regulation. [2] The party seeking exculpation is
engaged in performing a service of great importance to the public, which is often
a matter of practical necessity for some members of the public. [3] The party
holds himself out as willing to perform this service for any member of the
public who seeks it, or at least any member coming within certain established
standards. [4] As a result of the essential nature of the service, in the economic
setting of the transaction, the party invoking exculpation possesses a decisive
advantage of bargaining strength against any member of the public who seeks
his services. [5] In exercising a superior bargaining power the party confronts
the public with a standardized adhesion contract of exculpation, and makes no
provision whereby a purchaser may pay additional reasonable fees and obtain
protection against negligence. [6] Finally, as a result of the transaction, the
person or property of the purchaser is placed under the control of the seller,
subject to the risk of carelessness by the seller or his agents.” ’ Not all of these
factors need to be present for an exculpatory contract to be voided as affecting
the public interest.” (Hass, supra, 26 Cal.App.5th at p. 29, internal citations
omitted.)
• “The issue [of whether something is in the public interest] is tested objectively,
by the activity’s importance to the general public, not by its subjective
importance to the particular plaintiff.” (Booth v. Santa Barbara Biplane Tours,
LLC (2008) 158 Cal.App.4th 1173, 1179-1180 [70 Cal.Rptr.3d 660], original
italics.)
• “[P]ublic policy generally precludes enforcement of an agreement that would
remove an obligation to adhere to even a minimal standard of care. Applying
that general rule here, we hold that an agreement purporting to release liability
for future gross negligence committed against a developmentally disabled child
who participates in a recreational camp designed for the needs of such children
violates public policy and is unenforceable.” (City of Santa Barbara v. Superior
Court (2007) 41 Cal.4th 747, 777 [62 Cal.Rptr.3d 527, 161 P.3d 1095], original
italics.)
• “ ‘ “[A] purveyor of recreational activities owes a duty to a patron not to
increase the risks inherent in the activity in which the patron has paid to
engage.” ’ Thus, in cases involving a waiver of liability for future negligence,
courts have held that conduct that substantially or unreasonably increased the
inherent risk of an activity or actively concealed a known risk could amount to
gross negligence, which would not be barred by a release agreement.” (Willhide-
Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344, 359
[235 Cal.Rptr.3d 716].)
• “ ‘ “A written release may exculpate a tortfeasor from future negligence or
misconduct. [Citation.] To be effective, such a release ‘must be clear,
unambiguous, and explicit in expressing the intent of the subscribing parties.’
[Citation.] The release need not achieve perfection. [Citation.] Exculpatory
agreements in the recreational sports context do not implicate the public interest
CACI No. 451 NEGLIGENCE
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and therefore are not void as against public policy. [Citations.]” ’ ‘ “An
ambiguity exists when a party can identify an alternative, semantically
reasonable, candidate of meaning of a writing. [Citations.]” ’ ” (Huverserian v.
Catalina Scuba Luv, Inc. (2010) 184 Cal.App.4th 1462, 1467 [110 Cal.Rptr.3d
112], original italics, internal citations omitted.)
• “Unlike claims for ordinary negligence, products liability claims cannot be
waived.” (Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631,
640 [184 Cal.Rptr.3d 155].)
• “Since there is no disputed issue of material fact concerning gross negligence,
the release also bars [plaintiff]’s cause of action for breach of warranty.”
(Grebing, supra, 234 Cal.App.4th at p. 640.)
• “Generally, a person who signs an instrument may not avoid the impact of its
terms on the ground that she failed to read it before signing. However, a release
is invalid when it is procured by misrepresentation, overreaching, deception, or
fraud. ‘It has often been held that if the releaser was under a misapprehension,
not due to his own neglect, as to the nature or scope of the release, and if this
misapprehension was induced by the misconduct of the releasee, then the
release, regardless of how comprehensively worded, is binding only to the extent
actually intended by the releaser.’ ‘In cases providing the opportunity for
overreaching, the releasee has a duty to act in good faith and the releaser must
have a full understanding of his legal rights. [Citations.] Furthermore, it is the
province of the jury to determine whether the circumstances afforded the
opportunity for overreaching, whether the releasee engaged in overreaching and
whether the releaser was misled. [Citation.]’ A ‘strong showing of misconduct’
by the plaintiff is not necessary to demonstrate the existence of a triable issue of
fact here; only a ‘slight showing’ is required.” (Jimenez v. 24 Hour Fitness USA,
Inc. (2015) 237 Cal.App.4th 546, 563-564 [188 Cal.Rptr.3d 228], internal
citations omitted.)
• “Plaintiffs assert that Jerid did not ‘freely and knowingly’ enter into the Release
because (1) the [defendant’s] employee represented the Release was a sign-in
sheet; (2) the metal clip of the clipboard obscured the title of the document; (3)
the Release was written in a small font; (4) [defendant] did not inform Jerid he
was releasing his rights by signing the Release; (5) Jerid did not know he was
signing a release; (6) Jerid did not receive a copy of the Release; and (7) Jerid
was not given adequate time to read or understand the Release. [¶] We do not
find plaintiffs’ argument persuasive because . . . there was nothing preventing
Jerid from reading the Release. There is nothing indicating that Jerid was
prevented from (1) reading the Release while he sat at the booth, or (2) taking
the Release, moving his truck out of the line, and reading the Release. In sum,
plaintiffs’ arguments do not persuade us that Jerid was denied a reasonable
opportunity to discover the true terms of the contract.” (Rosencrans, supra, 192
Cal.App.4th at pp. 1080-1081.)
• “Whether a contract provision is clear and unambiguous is a question of law, not
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of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250
Cal.Rptr. 299].)
• “By signing as [decedent]’s parent, [plaintiff] approved of the terms of the
release and understood that her signature made the release ‘irrevocable and
binding.’ Under these circumstances, the release could not be disaffirmed. [¶]
Although [plaintiff]’s signature prevented the agreement from being disaffirmed,
it does not make her a party to the release.” (Eriksson, supra, 233 Cal.App.4th at
p. 721.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1439, 1449-1451
California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.44
1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03 (Matthew Bender)
4 California Trial Guide, Unit 90, Closing Argument, § 90.90 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.171
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.402 (Matthew
Bender)
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