California Civil Jury Instructions (CACI) (2017)

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

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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 recreational activity, e.g., horseback riding]
in which [name of plaintiff] was participating;]
2. [or]
2. [That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
horseback riding];]
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, December 2013
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 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].)
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
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Cal.Rptr.3d 90].) If the second option is selected, also give CACI No. 400,
Negligence—Essential Factual Elements.
While duty is a question of law, courts have held that whether the defendant has
unreasonably increased the risk is a question of fact for the jury. (See Luna v. Vela
(2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited
therein].) There may also 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 Recreational Activity. For an instruction on primary assumption of risk
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.
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.)
• “[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].)
• “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”], internal citations 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,
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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.)
• “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 take action beyond what, with hindsight, is found to have
been the student’s abilities. To hold otherwise would discourage instructors from
requiring students to stretch, and thus to learn, and would have a generally
deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club,
LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)
• 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.)
• “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, internal
citations 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
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case that postdates the appellate court decisions suggesting the issue is one for
the court to resolve.” (Luna, supra, 169 Cal.App.4th at pp. 112–113.)
• “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].)
• “[A duty not to increase the risk] arises only if there is an ‘ “organized
relationship” ’ between the defendants and the participant in relation to the
sporting activity, such as exists between . . . a coach or instructor and his or
her students. [I]mposing such a duty in the context of these types of
relationships is justified because the defendants are ‘responsible for, or in
control of, the conditions under which the [participant] engaged in the sport.’ ”
(Bertsch, supra, 247 Cal.App.4th at pp. 1208−1209, internal citation omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 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)
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