California Civil Jury Instructions (CACI) (2017)

408. Primary Assumption of Risk—Liability of Coparticipant in Sport or Other Activity

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408.Primary Assumption of Risk—Liability of Coparticipant in
Sport or Other Recreational Activity
[Name of plaintiff] claims [he/she] was harmed while participating in
[specify sport or other recreational activity, e.g., touch football] and that
[name of defendant] is responsible for that harm. To establish this claim,
[name of plaintiff] must prove all of the following:
1. That [name of defendant] either intentionally injured [name of
plaintiff] or acted so recklessly that [his/her] conduct was entirely
outside the range of ordinary activity involved in [e.g., touch
football];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
Conduct is entirely outside the range of ordinary activity involved in
[e.g., touch football] if that conduct can be prohibited without
discouraging vigorous participation or otherwise fundamentally
changing the [sport/activity].
[Name of defendant] is not responsible for an injury resulting from
conduct that was merely accidental, careless, or negligent.
New September 2003; Revised April 2004, October 2008, April 2009, December
2011, December 2013
Directions for Use
This instruction sets forth a plaintiff’s response to the affirmative defense of
primary assumption of risk asserted by a defendant who was a coparticipant in the
sport or other recreational activity. For an instruction applicable to coaches,
instructors, or trainers, see CACI No. 409, Primary Assumption of Risk—Liability
of Instructors, Trainers, or Coaches. For an instruction applicable to facilities
owners and operators and to event sponsors, see CACI No. 410, Primary
Assumption of Risk—Liability of Facilities Owners and Operators and Event
Sponsors.
Primary assumption of risk generally absolves the defendant of a duty of care
toward the plaintiff with regard to injury incurred in the course of a sporting or
other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3
Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].) Element 1 sets forth the
exceptions in which there is a duty.
While duty is generally a question of law, there may be disputed facts that must be
resolved by a jury before it can be determined if the doctrine applies. (See Shin v.
Ahn (2007) 42 Cal.4th 482, 486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)
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Sources and Authority
• “Primary assumption of risk arises where a plaintiff voluntarily participates in
an activity or sport involving certain inherent risks; primary assumption of risk
. . . bar[s] recovery because no duty of care is owed as to such risks.”
(Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 11 [45
Cal.Rptr.2d 855], internal citations omitted.)
• “Although the doctrine is often applied as between sports coparticipants, it
defines the duty owed as between persons engaged in any activity involving
inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill,
requires physical exertion as well as elements of skill, and involves a challenge
containing a potential risk of injury’ . . . .” (Jimenez v. Roseville City School
Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations
omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247
Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply
to skateboarding”].)
• “A coparticipant 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 (1992) 3 Cal.4th 339, 342 [11 Cal.Rptr.2d 30, 834
P.2d 724].)
• “[W]e conclude 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, supra, 3
Cal.4th at p. 320.)
• “The Knight rule, however, ‘does not grant unbridled legal immunity to all
defendants participating in sporting activity. The Supreme Court has stated that
“it is well established that defendants generally do have a duty to use due care
not to increase the risks to a participant over and above those inherent in the
sport.” Thus, even though “defendants generally have no legal duty to eliminate
(or protect a plaintiff against) risks inherent in the sport itself,” they may not
increase the likelihood of injury above that which is inherent.’ ” (Distefano v.
Forester (2001) 85 Cal.App.4th 1249, 1261 [102 Cal.Rptr.2d 813], internal
citations omitted.)
• “In Freeman v. Hale, the Court of Appeal advanced a test . . . for determining
what risks are inherent in a sport: ‘[C]onduct is totally outside the range of
ordinary activity involved in the sport (and thus any risks resulting from that
conduct are not inherent to the sport) if the prohibition of that conduct would
neither deter vigorous participation in the sport nor otherwise fundamentally
alter the nature of the sport.’ ” (Distefano, supra, 85 Cal.App.4th at p. 1261.)
• “[G]olfers have a limited duty of care to other players, breached only if they
intentionally injure them or engage in conduct that is ‘so reckless as to be
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totally outside the range of the ordinary activity involved in the sport.’ ” (Shin,
supra, 42 Cal.4th at p. 497.)
• “[W]hether defendant breached the limited duty of care he owed other golfers
by engaging in conduct that was ‘so reckless as to be totally outside the range
of the ordinary activity involved in [golf]’ depends on resolution of disputed
material facts. Thus, defendant’s summary judgment motion was properly
denied.” (Shin, supra, 42 Cal.4th at p. 486, internal citation omitted.)
• “Although we recognize the Court of Appeal decisions specifically addressing
the point are in conflict, we believe resolving this issue is not a matter of
further defining [defendant]’s duty, which would be a question of law for the
court. Rather, it requires application of the governing standard of care (the duty
not to increase the risks inherent in the sport) to the facts of this particular
case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski
Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of
snowboard jump increased inherent risks of snowboarding is question for jury];
Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial
jumps built by resort increased inherent risk of falling while skiing is question
for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th
112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor
league baseball team’s mascot increased inherent risk of spectator being hit by a
foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra,
138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether
defendants breached their duty not to increase the inherent risk of a collision [in
the sport of off-roading], and it should hold a hearing for this purpose before
impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79
Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide . . .
whether the defendant has increased the risks of the activity beyond the risks
inherent in the sport’]; see also Huffman v. City of Poway (2000) 84
Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court
to determine whether defendant’s conduct increased the risk inherent in
participating in a particular sport, but that trial court may receive expert
testimony on the customary practices in the sport to make that determination].)
[¶] Our conclusion it is for the trier of fact to determine whether [defendant]
breached his limited duty not to increase the risks inherent in the sport of
volleyball finds solid support in the Supreme Court’s most recent sports injury,
primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a
case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna v. Vela (2008) 169 Cal.App.4th 102, 112–113 [86
Cal.Rptr.3d 588].)
• “The determinant of duty, ‘inherent risk,’ is to be decided solely as a question
of law and based on the general characteristics of the sport activity and the
parties’ relationship to it.” ((Griffın v. The Haunted Hotel, Inc. (2015) 242
Cal.App.4th 490, 501 [194 Cal.Rptr.3d 830].)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a
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defendant’s duty of care in the primary assumption of risk context “is a legal
question which depends on the nature of the sport or activity . . . and on the
parties’ general relationship to the activity, and is an issue to be decided by the
court, rather than the jury.” ’ This statement of the rule is correct where there is
no dispute about the inherent risks, and such cases may be resolved on
summary judgment. [¶] However this statement is overly broad. Although the
risks inherent in many activities are not subject to reasonable dispute (e.g.,
being hit with a baseball during a game), the risks inherent in some activities
are not commonly known. In such cases, expert testimony may be required
‘ “for purposes of weighing whether the inherent risks of the activity were
increased by the defendant’s conduct.” ’ Thus, it is not entirely accurate to say
inherent risks of an activity always present purely legal questions, because
sometimes the nature of an activity and its risks must be gleaned from the
evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics.)
• “[Plaintiff] has repeatedly argued that primary assumption of the risk does not
apply because she did not impliedly consent to having a weight dropped on her
head. However, a plaintiff’s expectation does not define the limits of primary
assumption of the risk. ‘Primary assumption of risk focuses on the legal
question of duty. It does not depend upon a plaintiff’s implied consent to injury,
nor is the plaintiff’s subjective awareness or expectation relevant.’ ” (Cann v.
Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)
• “A jury could find that, by using a snowboard without the retention strap, in
violation of the rules of the ski resort and a county ordinance, defendant
unnecessarily increased the danger that his snowboard might escape his control
and injure other participants such as plaintiff. The absence of a retention strap
could therefore constitute conduct not inherent to the sport which increased the
risk of injury.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 829 [89
Cal.Rptr.2d 519].)
• “The existence and scope of a defendant’s duty depends on the role that
defendant played in the activity. Defendants were merely the hosts of a social
gathering at their cattle ranch, where [plaintiff] asked to ride one of their
horses; they were not instructors and did not assume any of the responsibilities
of an instructor.” (Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1550–1551
[98 Cal.Rptr.3d 779], internal citation omitted.)
• “[T]he primary assumption of risk doctrine is not limited to activities classified
as sports, but applies as well to other recreational activities ‘involving an
inherent risk of injury to voluntary participants . . . where the risk cannot be
eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d
1158].)
• “Whether a duty exists ‘does not turn on the reasonableness or
unreasonableness of the plaintiff’s conduct, but rather on [(1)] the nature of the
activity or sport in which the defendant is engaged and [(2)] the relationship of
the defendant and the plaintiff to that activity or sport.’ It is the ‘nature of the
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activity’ and the parties’ relationship to it that determines whether the doctrine
applies—not its characterization as a sporting event.” (McGarry v. Sax (2008)
158 Cal.App.4th 983, 999–1000 [70 Cal.Rptr.3d 519], internal citations
omitted.)
• “[T]o the extent that ‘ “ ‘a plaintiff unreasonably undertakes to encounter a
specific known risk imposed by a defendant’s negligence,’ ” ’ he or she is
subject to the defense of comparative negligence but not to an absolute defense.
This type of comparative negligence has been referred to as ‘ “secondary
assumption of risk.” ’ Assumption of risk that is based upon the absence of a
defendant’s duty of care is called ‘ “primary assumption of risk.” ’ ‘First, in
“primary assumption of risk” cases—where the defendant owes no duty to
protect the plaintiff from a particular risk of harm—a plaintiff who has suffered
such harm is not entitled to recover from the defendant, whether the plaintiff’s
conduct in undertaking the activity was reasonable or unreasonable. Second, in
“secondary assumption of risk” cases—involving instances in which the
defendant has breached the duty of care owed to the plaintiff—the defendant is
not entitled to be entirely relieved of liability for an injury proximately caused
by such breach, simply because the plaintiff’s conduct in encountering the risk
of such an injury was reasonable rather than unreasonable.’ ” (Kindrich v. Long
Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1259 [84 Cal.Rptr.3d 824],
original italics, internal citations omitted.)
• “Even were we to conclude that [plaintiff]’s decision to jump off the boat was a
voluntary one, and that therefore he assumed a risk inherent in doing so, this is
not enough to provide a complete defense. Because voluntary assumption of
risk as a complete defense in a negligence action was abandoned in Li v. Yellow
Cab Co. (1975) 13 Cal.3d 804, 829 [119 Cal.Rptr. 858, 532 P.2d 1226], only
the absence of duty owed a plaintiff under the doctrine of primary assumption
of risk would provide such a defense. But that doctrine does not come into play
except when a plaintiff and a defendant are engaged in certain types of
activities, such as an ‘active sport.’ That was not the case here; plaintiff was
merely the passenger on a boat. Under Li, he may have been contributorily
negligent but this would only go to reduce the amount of damages to which he
is entitled.” (Kindrich, supra, 167 Cal.App.4th at p. 1258.)
• “Though most cases in which the doctrine of primary assumption of risk exists
involve recreational sports, the doctrine has been applied to dangerous activities
in other contexts (see, e.g., Saville v. Sierra College (2005) 133 Cal.App.4th
857 [36 Cal.Rptr.3d 515] [training in peace officer takedown maneuvers];
Hamilton v. Martinelli & Associates (2003) 110 Cal.App.4th 1012 [2
Cal.Rptr.3d 168] [training on physical restraint methods]; Aaris v. Las Virgenes
Unified School Dist. (1998) 64 Cal.App.4th 1112 [75 Cal.Rptr.2d 801] [practice
of cheerleader routines]; [Bushnell v. Japanese-American Religious & Cultural
Center], 43 Cal.App.4th 525 [50 Cal.Rptr.2d 671] [practice of moves in judo
class]; and Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761 [53
Cal.Rptr.2d 713] [injury to nurse’s aide by nursing home patient]).” (McGarry,
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supra, 158 Cal.App.4th at pp. 999–1000, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1339, 1340,
1343–1350
1Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the
Risk, and Related Defenses, § 4.03, Ch. 15, General Premises Liability, § 15.21
(Matthew Bender)
23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and
Athletics, § 273.30 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.172
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.401 (Matthew
Bender)
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