CACI No. 470. Primary Assumption of Risk - Exception to Nonliability - Coparticipant in Sport or Other Recreational Activity

Judicial Council of California Civil Jury Instructions (2020 edition)

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470.Primary Assumption of Risk - Exception to
Nonliability - Coparticipant in Sport or Other Recreational Activity
[Name of plaintiff] claims [he/she/nonbinary pronoun] 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/nonbinary pronoun]
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 (1) increased the risks to [name of
plaintiff] over and above those inherent in [e.g., touch football], and (2) it
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; Revised and Renumbered From CACI No. 408 May 2017;
Revised May 2018
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. 471, Primary Assumption of Risk - Exception to
Nonliability - Instructors, Trainers, or Coaches. For an instruction applicable to
facilities owners and operators and to event sponsors, see CACI No. 472, Primary
Assumption of Risk - Exception to Nonliability - Facilities Owners and Operators
and Event Sponsors. For an instruction applicable to occupations with inherent risk,
see CACI No. 473, Primary Assumption of Risk - Exception to
Nonliability - Occupation Involving Inherent 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
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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, some courts have held that whether the
defendant has increased the risk beyond those inherent in the sport or activity 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, including cases contra.) 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].)
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”]; Swigart v. Bruno (2017) 13 Cal.App.5th 529, 540 [220
Cal.Rptr.3d 556] [horseback riding is an inherently dangerous sport]; Foltz v.
Johnson (2017) 16 Cal.App.5th 647, 656-657 [224 Cal.Rptr.3d 506] [off-road
dirt bike riding].)
• “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
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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 totally
outside the range of the ordinary activity involved in the sport.’ ” (Shin, supra,
42 Cal.4th at p. 497.)
• “The [horseback] rider generally assumes the risk of injury inherent in the sport.
Another person does not owe a duty to protect the rider from injury by
discouraging the rider’s vigorous participation in the sport or by requiring that
an integral part of horseback riding be abandoned. And the person has no duty to
protect the rider from the careless conduct of others participating in the sport.
The person owes the horseback rider only two duties: (1) to not ‘intentionally’
injure the rider; and (2) to not ‘increase the risk of harm beyond what is inherent
in [horseback riding]’ by ‘engag[ing] in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the sport’ ”
(Levinson v. Owens (2009) 176 Cal.App.4th 1534, 1545-1546 [98 Cal.Rptr.3d
779].)
• “[T]he general test is ‘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.’ Although a defendant
has no duty of care to a plaintiff with regard to inherent risks, a defendant still
has a duty not to increase those risks.” (Swigart,supra, 13 Cal.App.5th at p.
538, internal citations omitted.)
• “The question of which risks are inherent in a recreational activity is fact
intensive but, on a sufficient record, may be resolved on summary judgment.
Judges deciding inherent risk questions under this doctrine ‘may consider not
only their own or common experience with the recreational activity involved but
may also consult case law, other published materials, and documentary evidence
introduced by the parties on a motion for summary judgment.’ ” (Foltz,supra,
16 Cal.App.5th at p. 656, internal citations omitted.)
• “[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
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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 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
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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.)
• “[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].)
• “Primary assumption of the risk does not depend on whether the plaintiff
subjectively appreciated the risks involved in the activity; instead, the focus is an
objective one that takes into consideration the risks that are ‘ “inherent” ’ in the
activity at issue.” (Swigart,supra, 13 Cal.App.5th at p. 538.)
• “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, supra, 176 Cal.App.4th at pp. 1550-1551, 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 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
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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, supra, 158
Cal.App.4th at pp. 999-1000, internal citation omitted.)
Secondary Sources
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6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496-1508
1 Levy 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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