California Civil Jury Instructions (CACI)

451. Affirmative Defense—Contractual Assumption of Risk

[Name of defendant] claims that [name of plaintiff] may not recover any damages because [he/she] agreed before the incident that [he/she] 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/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, 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.

Sources and Authority

  • Civil Code section 1668 provides: “All contracts which have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”
  • “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.)
  • “[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].)
  • A release may also bar a wrongful death action, depending on the circumstances and terms of an agreement. (See Coates v. Newhall Land and Farming, Inc. (1987) 191 Cal.App.3d 1, 7–8 [236 Cal.Rptr. 181].)
  • Valid waivers will be upheld provided that they are not contrary to the “public interest.” (Tunkl v. Regents of Univ. of California (1963) 60 Cal.2d 92, 101 [32 Cal.Rptr. 33, 383 P.2d 441].)
  • “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 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 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.)
  • “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 of fact.” (Madison v. Superior Court (1988) 203 Cal.App.3d 589, 598 [250 Cal.Rptr. 299].)

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1282, 1292–1294

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)