As we approach summer and the beautiful Southern California weather, many of us are engaging in sports and recreational activities that could result in injury. Barry Goldberg, examines whether an injured participant can recover for injuries sustained during these activities. Most claims are barred by the common law doctrine of "primary assumption of the risk," with a few exceptions.
In California, it is the general rule that each person has a duty to use ordinary care and is liable for injuries caused by his or her failure to exercise reasonable care in the circumstances. (Knight v. Jewett (1992) 3 Cal.4th 296 (Knight).) Under the doctrine of primary assumption of risk, however, there is no duty to eliminate or protect a participant in a sport or recreational activity against risks inherent in that sport or activity; but participants do not impliedly assume the risk of actions by the defendant that increase the risk of harm inherent in the sport or recreational activity. (Calhoon v. Lewis (2000) 81 Cal.App.4th 108, 115-116 (Calhoon).) So, the critical question is whether a defendant "increased" the risk of harm inherent in the particular activity.
A good example of how to analyze this situation was presented in Calhoon. In that case, the plaintiff skateboarded on his friend's driveway. He fell into a planter and was injured by a metal pipe inside the planter. He sued his friend's parent, who had placed the planter in the driveway. He contended that he had not assumed the risk of such an injury, claiming that the case fell within an exception to the assumption of the risk doctrine, providing that: "'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.' [Citation.] [Plaintiff claimed the defendants] breached their duty because they increased the risks of skateboarding over and above that inherent in the sport by 'concealing' a metal pipe in a planter in their driveway." (Calhoon, supra, 81 Cal.App.4th at p. 116, emphasis added.) The Court of Appeal disagreed, stating that "the pipe did not increase [plaintiff]'s risk of injury in the sport. [Plaintiff] was injured because he fell. As [plaintiff] concedes, falling is an inherent risk of skateboarding, and the presence of the pipe or the planter had nothing to do with his falling down. The fact that [plaintiff]'s injuries were more severe than they would have been if the pipe had not been in the planter does not make the assumption of risk doctrine inapplicable. The Knight exception applies when the defendant increased the risk of injury beyond that inherent in the sport, not when the defendant's conduct may have increased the severity of the injury suffered. (See Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12 (emphasis added.) [defendant ski resort operator did not increase risk of injury by failing to pad ski lift towers; although the injury would have been less severe if there had been pads 'there was no evidence [the ski area] did or failed to do anything that caused [the plaintiff] to collide with the tower'].) As in Calhoon, increasing the severity of the injury is not the test—increasing the risk of injury is.
On the other hand, in Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193, a design of a particular jump at a BMX motocross course with acute slope created an extreme risk of injury. There, the court acknowledged that jumps, and falls, were an inherent risk of the sport and under the doctrine of primary assumption of risk. However, the court concluded that the sport does not inherently require jumps that are designed in such a way as to create an extreme risk of injury. In that case, the appellate court found that defendant had increased the risk of falling.
In Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, the court recognized that features both on and off a playing court or field constitute inherent risks: "[W]e also conclude that the risk of injury is not confined to the boundaries of the court. The risk inherent in the game extends beyond those lines and involves common occurrences, as when a player is shoved out of bounds, or his momentum when diving for the ball or driving to the basket propels him past the base line. An interested person need only turn on one of the week's many televised basketball games to see players falling, running or being pushed out of bounds onto reporters' tables, television cameras or fans seated near the court. Running into obstacles close to the sidelines must be considered an inherent risk of the game. The danger of an unpadded concrete wall, four feet beyond the boundaries, should have been apparent to anyone playing a full-court game of basketball in that gym. This is especially pertinent here since plaintiff testified he had played basketball in that gym previously and knew the wall was unpadded. This wall was not a 'hidden trap' created by defendant school district." (Id. at p. 1520.)
In most cases, the particular hazard is not open and obvious. But that is not what determines whether the doctrine applies. However, the application of primary assumption of the risk does not depend on the particular plaintiff's subjective knowledge of a particular feature of a field or court because he would have known of the risk of colliding, falling, and/or hitting a stationary object on the boundary of the playing field. (Knight, supra, 3 Cal.4th at p. 316.) Therefore, running into a dangerous structure does not increase the risk of colliding and/or falling and striking fixed objects, although the exact type of and severity of injury might have changed, as in Calhoon.
Only a very experienced trial attorney can help determine whether the doctrine of primary assumption of the risk applies, barring a potential claim. Further, focusing on the increased risks creates the best possible opportunity to avoid a bar of the primary assumption of the risk doctrine.