California Civil Jury Instructions (CACI)

409. Primary Assumption of Risk—Liability of Instructors, Trainers, or Coaches

[Name of plaintiff] claims [he/she] was harmed by [name of defendant]’s [coaching/training/instruction]. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] was [name of plaintiff]’s [coach/trainer/instructor];

2. [That [name of defendant] intended to cause [name of plaintiff] injury or acted recklessly in that [his/her] conduct was entirely outside the range of ordinary activity involved in teaching or coaching [sport or other activity] in which [name of plaintiff] was participating;]


[That [name of defendant]’s failure to use reasonable care increased the risks to [name of plaintiff] over and above those inherent in [sport or other activity];]

3. That [name of plaintiff] was harmed; and

4. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

New September 2003; Revised April 2004, June 2012

Directions for Use

This instruction sets forth a plaintiff’s response to a defendant’s assertion of the affirmative defense of primary assumption of risk. 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 activity covered by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].)

There are exceptions, however, in which there is a duty of care. Use the first option for element 2 if it is alleged that the coach or trainer intended to cause the student’s injury or engaged in conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport or activity. Use the second option if it is alleged that the coach’s or trainer’s failure to use ordinary care increased the risk of injury to the plaintiff, for example, by encouraging or allowing him or her to participate in the sport or activity when he or she was physically unfit to participate or by allowing the plaintiff to use unsafe equipment or instruments. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120 Cal.Rptr.3d 90].) If the second option is selected, also give CACI No. 400, Negligence—Essential Factual Elements.

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].)

For an instruction on primary assumption of risk applicable to coparticipants, see CACI No. 408, Primary Assumption of Risk—Liability of Coparticipant in Sport or Other Activity.

Sources and Authority

  • “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 v. East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4 Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)
  • “Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator. Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former’s tutelage. There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors. For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge. The coach or instructor is not, of course, an insurer, and a student may be held to notice that which is obvious and to ask appropriate questions. But all of the authorities that comment on the issue have recognized the existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1535–1536 [17 Cal.Rptr.2d 89, internal citations omitted.)
  • “[D]ecisions have clarified that the risks associated with learning a sport may themselves be inherent risks of the sport, and that an instructor or coach generally does not increase the risk of harm inherent in learning the sport simply by urging the student to strive to excel or to reach a new level of competence.” (Kahn, supra, 31 Cal.4th at p. 1006.)
  • “To the extent a duty is alleged against a coach for ‘pushing’ and/or ‘challenging’ a student to improve and advance, the plaintiff must show that the coach intended to cause the student’s injury or engaged in reckless conduct—that is, conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport. Furthermore, a coach has a duty of ordinary care not to increase the risk of injury to a student by encouraging or allowing the student to participate in the sport when he or she is physically unfit to participate or by allowing the student to use unsafe equipment or instruments.” (Eriksson, supra, 191 Cal.App.4th at p. 845, internal citation omitted.)
  • “[T]he mere existence of an instructor/pupil relationship does not necessarily preclude application of ‘primary assumption of the risk.’ Learning any sport inevitably involves attempting new skills. A coach or instructor will often urge the student to go beyond what the student has already mastered; that is the nature of (inherent in) sports instruction.” (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1368–1369 [59 Cal.Rptr.2d 813].)
  • “Instructors, like commercial operators of recreational activities, ‘have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport. Thus, although a ski resort has no duty to remove moguls from a ski run, it clearly does have a duty to use due care to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm. The cases establish that the latter type of risk, posed by a ski resort’s negligence, clearly is not a risk (inherent in the sport) that is assumed by a participant.’ ” (Fortier v. Los Rios Community College Dist. (1996) 45 Cal.App.4th 430, 435 [52 Cal.Rptr.2d 812], internal citations omitted.)
  • “ ‘Primary assumption of the risk’ applies to injuries from risks ‘inherent in the sport’; the risks are not any the less ‘inherent’ simply because an instructor encourages a student to keep trying when attempting a new skill.” (Allan, supra, 51 Cal.App.4th at p. 1369.)
  • Coaches and sports instructors “owe students a duty ‘not to increase the risks inherent in the learning process undertaken by the student.’ But this does not require them to ‘fundamentally alter the nature of the sport and, in some instances, effectively preclude participation altogether . . . .’ Instead, ‘[b]y choosing to participate in a sport that poses the obvious possibility of injury, the student athlete must learn to accept an adverse result of the risks inherent in the sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437 [89 Cal.Rptr.2d 920], internal citations omitted.)
  • “ ‘[T]he existence and scope of a defendant’s duty of care is a legal question which depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.’ Thus, when the injury occurs in a sports setting the court must decide whether the nature of the sport and the relationship of the defendant and the plaintiff to the sport as coparticipant, coach, premises owner or spectator support the legal conclusion of duty.” (Mastro v. Petrick (2001) 93 Cal.App.4th 83, 88 [112 Cal.Rptr.2d 185], internal citations omitted.)
  • “The existence of a duty of care is a separate issue from the question whether (on the basis of forseeability among other factors) a particular defendant breached that duty of care, which is an essentially factual matter.” (Kockelman v. Segal (1998) 61 Cal.App.4th 491, 498 [71 Cal.Rptr.2d 552].)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1090A–1090C,

1339, 1340, 1343–1350

Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating Factors In Reduction Of Damages, ¶¶ 3:234–3:254.30 (The Rutter Group)

1 Levy et al., California Torts, Ch. 4, Comparative Negligence, Assumption of the Risk, and Related Defenses, § 4.03 (Matthew Bender)

23 California Forms of Pleading and Practice, Ch. 273, Games, Sports, and Athletics, § 273.31 (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, § 165.401 et seq. (Matthew Bender)