The California Court of Appeal Affirms that the Primary Assumption of Risk Doctrine Bars a Delivery Driver’s Negligence Action Against a Customer

by Haight Brown & Bonesteel LLP
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In Moore v. William Jessup University 2015 DJDAR 13751, the California Court of Appeal, Third Appellate District, affirmed the trial court’s granting of summary judgment in a delivery driver’s negligence action against a shipper that allegedly understated a box’s weight on a shipping label, on the grounds that the primary assumption of risk doctrine bars the action.

Plaintiff Stephen Moore, a United Parcel Service (UPS) delivery driver, was injured when he lifted a box with a shipping label prepared by defendant William Jessup University (University). The shipping label inaccurately stated the weight of the box. Plaintiff sued the University for negligence, and the University filed a motion for summary judgment. The trial court granted summary judgment on the grounds that the University did not owe plaintiff a legal duty of care, and the doctrine of primary assumption of risk barred plaintiff’s action.

Plaintiff appealed, contending that primary assumption of risk does not apply where the University increased the risk to plaintiff by understating the weight of the box, and failing to use highlighted tape to mark the box. Plaintiff also contended that the University owed him a duty of care pursuant to Rowland v. Christian (1968) 69 Cal.2d 108.

The court affirmed the trial court’s granting of summary judgment, finding the primary assumption of risk doctrine bars plaintiff’s negligence action. While the doctrine does not require a plaintiff to assume every possible risk presented in an occupation, the University did not increase the risks to plaintiff beyond those that were inherent in plaintiff’s job as a delivery driver.

The court examined the factors in evaluating primary assumption of risk: judges’ common experience with the activity involved; applicable case law; other published materials; and documentary evidence introduced by the parties. In examining these factors the court concluded that encountering mislabeled packages was both an obvious and inherent risk of plaintiff’s job as a delivery driver, and that plaintiff was in the best position to guard against injuries from lifting boxes. The Court also found there was no evidence that UPS customers bore a burden of ensuring that UPS delivery drivers properly lifted boxes, or did anything to increase the risk of injury to plaintiff beyond that which was inherent in his job. The Court additionally relied on case law from other states holding that UPS customers have no duty to protect a UPS driver from injuries related to lifting boxes, and on public policy considerations of promoting the use of commercial shipping and delivery services.

Having held that the University did not owe plaintiff a duty under the primary assumption of risk doctrine, the Court did not address the issue of whether the University owed plaintiff a duty of care under Rowland v. Christian.

The court’s holding in Moore v. William Jessup University is a reminder that the doctrine of primary assumption of risk can be a complete bar to a negligence action under the right circumstances. The doctrine of primary assumption of risk should be a factor considered distinctly from comparative negligence in evaluating the merits of such a case.

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