CACI No. 472. Primary Assumption of Risk - Exception to Nonliability - Facilities Owners and Operators and Event Sponsors

Judicial Council of California Civil Jury Instructions (2020 edition)

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472.Primary Assumption of Risk - Exception to
Nonliability - Facilities Owners and Operators and Event
Sponsors
[Name of plaintiff] claims [he/she/nonbinary pronoun] 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 following:
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.,
snowboarding];]
2. [or]
2. [That [name of defendant] unreasonably failed to minimize a risk
that is not inherent in [e.g., snowboarding] and unreasonably
exposed [name of plaintiff] to an increased risk of harm;]
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; Revised and Renumbered From CACI No. 410 May 2017;
Revised May 2019
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].)
There is also a duty to minimize risks that are extrinsic to the nature of the sport;
that is, those that can be addressed without altering the essential nature of the
activity. (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 38 [236
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Cal.Rptr.3d 682].) Choose either or both options for element 2 depending on which
duty is alleged to have been breached.
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]; cf.
Willhide-Michiulis v. Mammoth Mountain Ski Area, LLC (2018) 25 Cal.App.5th 344,
354 [235 Cal.Rptr.3d 716] [court to decide whether an activity is an active sport, the
inherent risks of that sport, and whether the defendant has increased the risks of the
activity beyond the risks inherent in the sport].) 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. 470, Primary Assumption of Risk - Exception to
Nonliability - Coparticipant in Sport or Other Recreational Activity. For an
instruction on primary assumption of risk applicable to instructors, trainers, and
coaches, see CACI No. 471, Primary Assumption of Risk - Exception to
Nonliability - Instructors, Trainers, or Coaches. For an instruction applicable to
occupations with inherent risk, see CACI No. 473, Primary Assumption of
Risk - Exception to Nonliability - Occupation With Inherent Risk.
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.)
• “What the primary assumption of risk doctrine does not do, however, is absolve
operators of any obligation to protect the safety of their customers. As a general
rule, where an operator can take a measure that would increase safety and
minimize the risks of the activity without also altering the nature of the activity,
the operator is required to do so. As the court explained in Knight, ‘in the sports
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setting, as elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct is at issue in a
given case.’ When the defendant is the operator of an inherently risky sport or
activity (as opposed to a coparticipant), there are ‘steps the sponsoring business
entity reasonably should be obligated to take in order to minimize the risks
without altering the nature of the sport [or activity].’ ” (Grotheer v. Escape
Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1300 [222 Cal.Rptr.3d 633],
original italics, internal citations omitted.)
• “Thus, Nalwa actually reaffirms Knight’s conclusions regarding the duties owed
to participants by operators/organizers of recreational activities. In short, such
operators and organizers have two distinct duties: the limited duty not to increase
the inherent risks of an activity under the primary assumption of the risk
doctrine and the ordinary duty of due care with respect to the extrinsic risks of
the activity, which should reasonably be minimized to the extent possible
without altering the nature of the activity.” (Hass, supra, 26 Cal.App.5th at p.
38, original italics.)
• “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
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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.
315-316.)
• “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
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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, original
italics.)
• “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. 12081209, internal citations omitted.)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1496-1497,
1501-1508
Haning et al., California Practice Guide: Personal Injury, Ch. 3-D, Mitigating
Factors In Reduction Of Damages, ¶¶ 3:1120 (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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