California Civil Jury Instructions (CACI) (2017)

410. Parental Liability (Nonstatutory)

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410.Primary Assumption of Risk—Liability of Facilities Owners
and Operators and Event Sponsors
[Name of plaintiff] claims [he/she] was harmed while [participating in/
watching] [sport or other recreational activity, e.g., snowboarding] at [name
of defendant]’s [specify facility or event where plaintiff was injured, e.g., ski
resort]. To establish this claim, [name of plaintiff] must prove all of the
1. That [name of defendant] was the [owner/operator/sponsor/other]
of [e.g., a ski resort];
2. That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
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 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 is, however, a duty applicable to facilities owners and
operators and to event sponsors not to unreasonably increase the risks of injury to
participants and spectators beyond those inherent in the activity. (See Nalwa v.
Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1162 [150 Cal.Rptr.3d 551, 290 P.3d
1158] [participants]; Lowe v. California League of Prof. Baseball (1997) 56
Cal.App.4th 112, 123 [65 Cal.Rptr.2d 105] [spectators].)
While duty is a question of law, courts have held that whether the defendant has
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 instructors, trainers, and coaches, see CACI No. 409, Primary
Assumption of Risk—Liability of Instructors, Trainers, or Coaches.
Sources and Authority
• “[U]nder the primary assumption of risk doctrine, operators, sponsors and
instructors in recreational activities posing inherent risks of injury have no duty
to eliminate those risks, but do owe participants the duty not to unreasonably
increase the risks of injury beyond those inherent in the activity.” (Nalwa,
supra, 55 Cal.4th at p. 1162.)
• “The doctrine applies to 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.” ’ ” (Griffın v. The
Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 500 [194 Cal.Rptr.3d 830].)
• “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.)
• “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, supra, 242 Cal.App.4th at p. 501.)
• “Admittedly, it is sometimes said that ‘[t]he existence and scope of a
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
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.)
• “Although defendants generally have no legal duty to eliminate (or protect a
plaintiff against) risks inherent in the sport itself, 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, 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.” (Knight, supra, 3 Cal.4th at pp.
• “Under Knight, defendants had a duty not to increase the inherent risks to
which spectators at professional baseball games are regularly exposed and
which they assume. As a result, a triable issue of fact remained, namely
whether the [defendants]’ mascot cavorting in the stands and distracting
plaintiff’s attention, while the game was in progress, constituted a breach of that
duty, i.e., constituted negligence in the form of increasing the inherent risk to
plaintiff of being struck by a foul ball.” (Lowe, supra, 56 Cal.App.4th at p. 114,
original italics.)
• “[T]hose responsible for maintaining athletic facilities have a . . . duty not to
increase the inherent risks, albeit in the context of businesses selling
recreational opportunities.” (Avila v. Citrus Community College Dist. (2006) 38
Cal.4th 148, 162 [41 Cal.Rptr.3d 299, 131 P.3d 383], internal citation omitted.)
• “Knight, consistently with established case law, simply requires courts in each
instance to examine the question of duty in light of the nature of the
defendant’s activities and the relationship of the parties to that activity.”
(Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 482 [63 Cal.Rptr.2d
291, 936 P.2d 70].)
• “Because primary assumption of risk focuses on the question of duty, it is not
dependent on either the plaintiff’s implied consent to, or subjective appreciation
of, the potential risk.” (Griffın, supra, 242 Cal.App.4th at p. 502.)
• “Defendants’ obligation not to increase the risks inherent in the activity
included a duty to provide safe equipment for the trip, such as a safe and sound
craft.” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 255 [38
Cal.Rptr.2d 65].)
• “[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 recreational business operator and its
patrons . . . . [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.’ ”
However, ‘[t]his policy justification does not extend to a defendant wholly
uninvolved with and unconnected to the sport,’ . . . who neither ‘held out their
driveway as an appropriate place to skateboard or in any other way represented
that the driveway was a safe place for skateboarding.’ ” (Bertsch, supra, 247
Cal.App.4th at pp. 1208−1209, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1339, 1340,
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)