CACI No. 473. Primary Assumption of Risk - Exception to Nonliability - Occupation Involving Inherent Risk

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
473.Primary Assumption of Risk - Exception to
Nonliability - Occupation Involving Inherent Risk
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was harmed by
[name of defendant] while [name of plaintiff] was performing
[his/her/nonbinary pronoun] job duties as [specify, e.g., a firefighter]. [Name
of defendant] is not liable if [name of plaintiff]’s injury arose from a risk
inherent in the occupation of [e.g., firefighter]. However, [name of plaintiff]
may recover if [he/she/nonbinary pronoun] proves all of the following:
[1. That [name of defendant] unreasonably increased the risks to
[name of plaintiff] over and above those inherent in [e.g.,
firefighting];]
[1. [or]
[1. That [name of defendant] [misrepresented to/failed to warn] [name
of plaintiff] [of] a dangerous condition that [name of plaintiff] could
not have known about as part of [his/her/nonbinary pronoun] job
duties;]
[1. [or]
[1. That the cause of [name of plaintiff]’s injury was not related to the
inherent risk;]
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.
New May 2017; Revised May 2020
Directions for Use
Give this instruction if the plaintiff asserts an exception to assumption of risk of the
injury that the plaintiff suffered because the risk is an inherent part of the plaintiff’s
duties. This has traditionally been referred to as the “firefighter’s rule.” (See
Gregory v. Cott (2014) 59 Cal. 4th 996, 1001 [176 Cal. Rptr. 3d 1, 331 P.3d 179].)
There are, however, exceptions to nonliability under the firefighter’s rule. The
plaintiff may recover if (1) the defendant’s actions have unreasonably increased the
risks of injury beyond those inherent in the occupation; (2) the defendant
misrepresented or failed to disclose a hazardous condition that the plaintiff had no
reason to know about; or (3) the cause of the injury was not related to the inherent
risk. This instruction asks the jury to determine whether an exception applies.
(Gregory, supra, 59 Cal.4th at p. 1010.) These exceptions are presented in the
options to element 1.
389
Copyright Judicial Council of California
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].)
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 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.
Sources and Authority
• “Primary assumption of risk cases often involve recreational activity, but the
doctrine also governs claims arising from inherent occupational hazards. The bar
against recovery in that context first developed as the ‘firefighter’s rule,’ which
precludes firefighters and police officers from suing members of the public for
the conduct that makes their employment necessary. After Knight, we have
viewed the firefighter’s rule ‘not . . . as a separate concept,’ but as a variant of
primary assumption of risk, ‘an illustration of when it is appropriate to find that
the defendant owes no duty of care.’ Whether a duty of care is owed in a
particular context depends on considerations of public policy, viewed in light of
the nature of the activity and the relationship of the parties to the activity.”
(Gregory, supra, 59 Cal. 4th at pp. 1001-1002, internal citations omitted.)
• “The firefighter’s rule, upon which the [defendant] relies, and the analogous
veterinarian’s rule, are examples of the primary assumption of risk doctrine
applied in the employment context.” (Moore v. William Jessup University (2015)
243 Cal.App.4th 427, 435 [197 Cal.Rptr.3d 51].)
• “Our holding does not preclude liability in situations where caregivers are not
warned of a known risk, where defendants otherwise increase the level of risk
beyond that inherent in providing care, or where the cause of injury is unrelated
to the symptoms of [Alzheimers] disease.” (Gregory, supra, 59 Cal.4th at p.
1000.)
• “[T]he principle of assumption of risk, which forms the theoretical basis for the
fireman’s rule, is not applicable where a fireman’s injuries are proximately
caused by his being misled as to the nature of the danger to be confronted.”
(Lipson v. Superior Court (1982) 31 Cal.3d 362, 371 [182 Cal. Rptr. 629, 644
P.2d 822].)
• “The firefighter’s rule, however, is hedged about with exceptions. The firefighter
does not assume every risk of his or her occupation. The rule does not apply to
conduct other than that which necessitated the summoning of the firefighter or
police officer, and it does not apply to independent acts of misconduct that are
committed after the firefighter or police officer has arrived on the scene.”
(Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal. Rptr.
CACI No. 473 NEGLIGENCE
390
Copyright Judicial Council of California
2d 630, 882 P.2d 347], internal citation omitted.)
• “We have noted that the duty to avoid injuring others ‘normally extends to those
engaged in hazardous work.’ ‘We have never held that the doctrine of
assumption of risk relieves all persons of a duty of care to workers engaged in a
hazardous occupation.’ However, the doctrine does apply in favor of those who
hire workers to handle a dangerous situation, in both the public and the private
sectors. Such a worker, ‘as a matter of fairness, should not be heard to complain
of the negligence that is the cause of his or her employment. [Citations.] In
effect, we have said it is unfair to charge the defendant with a duty of care to
prevent injury to the plaintiff arising from the very condition or hazard the
defendant has contracted with the plaintiff to remedy or confront.’ This rule
encourages the remediation of dangerous conditions, an important public policy.
Those who hire workers to manage a hazardous situation are sheltered from
liability for injuries that result from the risks that necessitated the employment.”
(Gregory, supra, 59 Cal.4th at p. 1002, internal citations omitted.)
• “[A] person whose conduct precipitates the intervention of a police officer owes
no duty of care to the officer ‘with respect to the original negligence that caused
the officer’s intervention.’ ” (Harry v. Ring the Alarm, LLC (2019) 34
Cal.App.5th 749, 759 [246 Cal.Rptr.3d 471].)
• “Because of the nature of the activity, caring for the mentally infirm, and the
relationship between the parties, patient and caregiver, mentally incompetent
patients should not owe a legal duty to protect caregivers from injuries suffered
in attending to them. Here, the very basis of the relationship between plaintiff
and [defendant] was to protect [defendant] from harming either herself or
others.” (Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, 1770 [53
Cal.Rptr.2d 713].)
Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, § 1515
1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.23
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.173
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence, § 165.412 (Matthew
Bender)
474-499. Reserved for Future Use
NEGLIGENCE CACI No. 473
391
Copyright Judicial Council of California

© Judicial Council of California.