Bar to Recover - Affirmative Defense

The primary assumption of the risk doctrine bars a plaintiff’s recovery for negligence when “it can be established that, because of the nature of the activity involved and the parties’ relationship to the activity, the defendant owed the plaintiff no duty of care.” (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538; see also Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161 (“Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms”).) “The doctrine of ‘primary’ assumption of risk developed as an exception to the general rule that all persons have a duty to use due care to avoid injury to others.... [p]rimary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69.)

“Assumption of risk falls into two categories: primary and secondary.” (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 49.) “Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks.” (Id.) “It embodies those instances where there is a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from that particular risk....” (Id. citing Knight v. Jewett (1992) 3 Cal. 4th 296, 308.) “Secondary assumption of risk embodies those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant's breach of that duty.” (Balthazor at 49.) “Secondary assumption of risk cases are merged into the comprehensive-comparative fault system, requiring that the trier of fact determine the relative responsibility of the parties in apportioning the loss.” (Id.)

When Liability Should Attach

“In the context of primary assumption of the risk, liability should attach only when the defendant has increased the risks to a participant over and above those inherent in the sport.” (Id.) “Courts look to the nature of the activity or sport at issue and the relationship of the defendant and the plaintiff to that activity or sport to determine if a defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Balthazor at 50.)

“Cases in which a duty was found include where, for example, an instructor gave specific directions to the participant which increased the risk of harm inherent in the sport.” (Id.) “The rationale is that where the defendant has acted so as to increase the risk of harm inherent in a particular sport, he/she should not be able to thereafter rely on the primary assumption of risk doctrine.” (Id. at 51.)

Sports Activities and Assumption of Risks

Primary assumption of the risk means that the plaintiff has voluntarily participated in a sport that includes various inherent risks, and therefore, the defendant is relieved of his or her duty to use due care to avoid the plaintiff suffering an injury as a result of those inherent risks of the sport. (Knight v. Jewett, supra, 3 Cal.4th at pp. 308-309, fns. 3-4, 315-316.) The question of whether a defendant should be relieved of his or her duty is a question of law and policy. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.)

“A court must evaluate

1. the fundamental nature of the sport, and
2. the defendant's relationship to the sport, in order to determine if the defendant should be relieved of his or her duty of care.

(Id.)

“As a matter of policy, a duty should not be imposed where doing so "would require that an integral part of the sport be abandoned, or would discourage vigorous participation in sporting events.” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.) “If the defendant is relieved of his or her duty of care, then the plaintiff's negligence cause of action is barred.” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1068.)

“Courts look to the nature of the activity or sport at issue and the relationship of the defendant and the plaintiff to that activity or sport to determine if a defendant owes a duty to protect a plaintiff from the particular risk of harm.” (Balthazor v. Little League Baseball, Inc. (1998) 62 Cal.App.4th 47, 50.) “Cases in which a duty was found include where, for example, an instructor gave specific directions to the participant which increased the risk of harm inherent in the sport.” (Id.) “The rationale is that where the defendant has acted so as to increase the risk of harm inherent in a particular sport, he/she should not be able to thereafter rely on the primary assumption of risk doctrine.” (Id. at 51.)

Defining “Recreational” under Acosta v. Los Angeles Unified School District

“In some cases the question whether the plaintiff was engaged in a ‘recreational’ activity may be a question of fact for the jury.” (Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 475) “But where... the facts are undisputed, the question whether plaintiff was engaged in a ‘hazardous recreational activity’ is a question of law for the court.” (Acosta, Id. citing Yarber v. Oakland Unified School Dist. (1992) 4 Cal.App.4th 1516, 1519 noting ‘participation in adult basketball league was "hazardous recreational activity" as a matter of law’.) (”In the present case the issue of immunity under section 831.7 should never have gone to the jury because, as a matter of law, "hazardous recreational activities" do not include school-sponsored extracurricular athletic activities under the supervision of school personnel.” (Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 476.))

Statutory Immunity

In Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, the court discussed at length the issue of student sports participants injured during the activity and the doctrine of primary assumption of risk.

The court considered the questions: “What of playing in a high school or intercollegiate baseball game, which falls somewhere between these extreme?” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 154.) “Does it matter if one is a scholarship athlete, and thus receiving some form of reward for one's continued performance, or if one's participation in a sporting activity is compulsory because of state laws governing physical education instruction?” (Id.) “The text alone cannot answer these questions.” (Id.)

“In the absence of any indication of such a legislative intent, we will not read section 831.7 as immunizing public entities from potential liability arising out of their oversight of school-sponsored activities.” (Avila, supra 38 Cal.4th at 160.) Thus, we conclude that school sports in general, and organized intercollegiate games in particular, are not “recreational” within the meaning of the statute. (Id.)

As cited in Acosta v. Los Angeles Unified School Dist. (1995) 31 Cal.App.4th 471, 475, Section 831.7 reads in relevant part:

1. Neither a public entity nor a public employee is liable to any person who participates in a hazardous recreational activity....
2. As used in this section, 'hazardous recreational activity' means any recreational activity conducted on property of a public entity which creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury to a participant or a spectator....
3. Notwithstanding the provisions of subdivision (a), this section does not limit liability which would otherwise exist for any of the following:...
   5. An act of gross negligence by a public entity or a public employee which is the proximate cause of the injury."

(Id.)