Primary Assumption of Risk Doctrine California
Under the assumption of the risk doctrine, ordinarily a recreation provider owes no duty to a participant in an active sport to use due care to eliminate risks inherent in the sport. In Knight v. Jewett, supra, 3 Cal. 4th 296, and its companion case Ford v. Gouin (1992) 3 Cal. 4th 339 11 Cal. Rptr. 2d 30, 834 P.2d 724, 34 A.L.R.5th 769, the Supreme Court distinguished between primary and secondary assumption of the risk.
Primary assumption of the risk "embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk . . . ." (Knight v. Jewett, supra, 3 Cal. 4th at p. 308.)
Therefore, if the doctrine applies, there is no duty and the plaintiff's assumption of the risk acts as a complete bar to liability. (Ibid.)
Secondary assumption of the risk, in contrast, refers to those instances in which the defendant owes a duty of care, but the plaintiff knowingly encounters a risk created by the breach of the duty. (Id. at p. 310.)
Unlike primary assumption of the risk cases, secondary assumption of the risk cases are subsumed into the comparative fault scheme, and a plaintiff's assumption of the risk does not act as a bar to the action. (Id. at p. 315.)
"Generally, the participation in an active sport is governed by primary assumption of risk, and a defendant owes no duty of care to protect a plaintiff against risks inherent in the sport." (Staten v. Superior Court (1996) 45 Cal. App. 4th 1628, 1632 53 Cal. Rptr. 2d 657.)
However, a recreation provider owes a participant in an active sport a duty, under the secondary assumption of the risk doctrine, not to increase the risk of harm over and above the inherent risk of the sport. ( Morgan v. Fuji Country USA. Inc. (1995) 34 Cal. App. 4th 127, 132 40 Cal. Rptr. 2d 249.)
If a risk is inherent in a sport, the fact that a defendant had a feasible means to remedy the danger does not impose a duty to do so. (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal. App. 4th 8, 13 45 Cal. Rptr. 2d 855.)
A duty is not created because safer materials are available to remedy the danger. (Ibid.)
The standards in the industry define the nature of the sport. (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal. App. 4th 47, 52 72 Cal. Rptr. 2d 337 youth baseball batting helmet constructed without a face guard; Fortier v. Los Rios Community College Dist. (1996) 45 Cal. App. 4th 430, 439 52 Cal. Rptr. 2d 812 preseason football practice conducted without pads and helmets; Ferrari v. Grand Canyon Dories, supra, 32 Cal. App. 4th at p. 257 white water raft configured with metal frame superstructure.)
"As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person.
Thus, for example, a property owner ordinarily is required to use due care to eliminate dangerous conditions on his or her property.
In the sports setting, however, conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself." (Knight v. Jewett (1992) 3 Cal. 4th 296, 315 11 Cal. Rptr. 2d 2, 834 P.2d 696.)
"In this respect, the nature of a sport is highly relevant in defining the duty of care owed by the particular defendant." (Ibid.)
"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." ( Id. at pp. 315-316.)
"In some situations, however, the careless conduct of others is treated as an 'inherent risk' of a sport, thus barring recovery by the plaintiff." (Id. at p. 316.)
"Resolution of the question of the defendant's liability in such cases turns on whether the defendant had a legal duty to avoid such conduct or to protect the plaintiff against a particular risk of harm.
As already noted, the nature of a defendant's duty in the sports context depends heavily on the nature of the sport itself. Additionally, the scope of the legal duty owed by a defendant frequently will also depend on the defendant's role in, or relationship to, the sport." (Id. at pp. 316-317.)