Primary Assumption of Risk in Sports in California

Moreover, the policy factors governing primary assumption of the risk in a general sports setting apply equally to students participating in extracurricular school sports. [Citations.]

Primary Assumption of the Risk In the recreation and sports context, primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the injury is due to a risk that is inherent in an activity in which the plaintiff chose to participate. (Knight v. Jewett (1992) 3 Cal.4th 296, 308 (Knight); Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1154 (Nalwa).)

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. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v.

The doctrine of primary assumption of the risk, however, “does not grant unbridled legal immunity to all defendants.” (Campbell v. Derylo (1999) 75 Cal.App.4th 823, 827 [89 Cal. Rptr. 2d 519].)

The State moves for summary judgment pursuant to the doctrine of primary assumption of risk. Although people generally have a duty to use due care to avoid injuring others, there are exceptions to that general rule, based on statute or public policy. Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 537. One of those exceptions is the public policy expressed in the doctrine of primary assumption of the risk. Id.

The Activity of Grape-Stomping is Subject to the Primary Assumption of the Risk Doctrine Defendants argue the primary assumption of the risk doctrine applies to the activity of grape-stomping. In support, they cite to Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650. In Beninati, the plaintiff suffered burns to his hands after tripping and falling into a bonfire during the Burning Man Festival.

Primary Assumption of the Risk “The common law doctrine of primary assumption of risk has been used a complete defense in personal injury lawsuits arising from any particular sports activity that is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.

Primary Assumption of the Risk USC next argues that Plaintiffs claim is barred under the doctrine of primary assumption of the risk. The primary assumption of the risk doctrine bars a plaintiffs 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.

Skateland also argues that an expert opinion does not create a triable issue of fact on a motion for summary judgment based on a primary assumption of the risk defense.

Motion for Summary Judgment/Adjudication Defendants’ first contention is that Plaintiff’s entire complaint against them is barred by the primary assumption of the risk doctrine. a. Law Governing assumption of the risk Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks.

Motion for Summary Judgment/Adjudication Defendants’ first contention is that Plaintiff’s entire complaint against them is barred by the primary assumption of the risk doctrine. a. Law Governing assumption of the risk Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks.

Primary assumption of risk applies to touch football because it is an “active sport . . . .” (Knight v. Jewett (1992) 3 Cal.4th 296, 320.) A school’s general duty to supervise students does not “foreclose application of the primary assumption of the risk doctrine to those risks inherent in school sports.” (Lilley v. Elk Grove Unified School Dist. (1998) 68 Cal.App.4th 939, 945–946.)

Primary Assumption of the Risk Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)

DUTY OF CARE – PRIMARY ASSUMPTION OF THE RISK DOCTRINE Defendants contend the primary assumption of risk doctrine bars Plaintiff’s claim. In Nalwa , the California Supreme Court in addressing the applicability of the doctrine held in part that: Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous.

Being hit by a golf club is not an inherent risk in the sport of golf, and defendant is not entitled to summary judgment on the grounds of the primary assumption of the risk doctrine. In the absence of primary assumption of the risk, a reasonably prudent person standard of care governs Defendant’s potential liability. (See Hemady, 143 Cal.App.4th at 579.) Whether there has been a breach of this duty is a question for the jury, not the court. (See Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1227.)

Analysis re: Primary Assumption of the Risk The elements of a cause of action for negligence are duty, breach, causation, and damages. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)

The parties do not dispute that Pilates is a recreational activity that is subject to the primary assumption of the risk defense. The parties, however, do not cite legal authority that directly applies the primary assumption of the risk doctrine to the practice of Pilates.

The trial court granted summary judgment, ruling that primary assumption of risk applied, but the court of appeal reversed.

Whether the Doctrine of Primary Assumption of Risk Applies? The California Supreme Court, in Knight v. Jewett (1992) 3 Cal.4th 296, 308, described primary assumption of the risk as encompassing situations when a defendant owes no duty of care to protect the plaintiff from a particular risk, regardless of whether the plaintiff acted reasonably or unreasonably in encountering the risk.

Cedar Fair, L.P., supra 55 Cal.4th at 1157-1158—primary assumption of risk not limited to traditional “sports” but includes “nonsport” recreational activities.)

Primary Assumption of Risk Primary assumption of risk is a complete defense where, by virtue of the nature of the activity and the parties’ relationship to the activity, a defendant owes no legal duty to protect a plaintiff from the particular risk of harm that caused the injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 308-09.)

“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. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].) “Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . .

“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. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].) “Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . .

Primary Assumption of Risk 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.

While her son was barred by the primary assumption of the risk from suing Young, Lloyd was not. Lloyd was not riding as a passenger in the boat for thrill, nor was there any required skill or challenge as a passenger that contained a potential risk of injury. Accordingly, being a passenger in a boat towing an inner tuber is a recreational rather than sporting activity and therefore the primary assumption of the risk doctrine has no application in this case.

The court noted that the plaintiff had evidence to support his claim of negligent supervision and that “this portion of his case is not barred by primary assumption of the risk.” Id., at 606.

Primary Assumption of the Risk Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)

“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. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].) “Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . .

Instead, they argue in the alternative that her claim is barred by the doctrine of “primary assumption of risk.” (Motion at p. 19.) The doctrine of primary assumption of risk generally applies to the field of sports, “where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.” (Rostai v. Neste Enterprise (2006) 138 Cal.App.4th 326, 331.)

Defendants argue that the use of service and equipment as a spa constitute a recreational activity within the meaning of Californias limited primary assumption of the risk doctrine and receiving a wet massage at a spa is a recreational activity. However, Defendants cite no authority which leads the Court to conclude that the primary assumption of risk doctrine applies to receiving a wet massage. Defendants only cite to Grebing v. 24 Hour Fitness USA, Inc.

“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. . . . Primary assumption of risk is a complete bar to recovery.” (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].) “Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk. . . .

Primary assumption of risk is a complete bar to recovery. Secondary assumption of risk 'is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.' [Citation.]' (Id. at p. 69, 8 Cal.Rptr.3d 823.)." Id., at 547. Here, the issue is secondary assumption of the risk. The doctrine of primary assumption of risk does not apply and does not bar plaintiffs' claims.

Primary Assumption of the Risk Analysis Defendant’s motion for summary judgment on the ground that the doctrine of primary assumption of the risk bars Plaintiff’s claims is denied. The Court cannot say, as a matter of law, that Wilkins, as an adult teacher, and former coach, did not increase the risk inherent in the parties’ sport when the injury occurred.

[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.

Primary Assumption of the Risk Defendant next argues that primary assumption of the risk bars any complaint arising out of an injury based on a risk which is inherent to the voluntary participation in a sport or recreational activity. “Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk does bar recovery because no duty of care is owed as to such risks.” (Connelly v.

Primary Assumption of the Risk Analysis Defendant’s motion for summary judgment on the ground that the doctrine of primary assumption of the risk bars Plaintiff’s claims is granted. First, Defendant provides videotape footage of the incident itself, which shows Plaintiff skating with her sister, losing her balance, and falling backward; she then tries to stand up, loses her balance again, and falls backward onto her own outstretched hand.

Primary Assumption of the Risk Analysis Defendant’s motion for summary judgment on the ground that the doctrine of primary assumption of the risk bars Plaintiff’s claims is granted. First, Defendant provides videotape footage of the incident itself, which shows Plaintiff skating with her sister, losing her balance, and falling backward; she then tries to stand up, loses her balance again, and falls backward onto her own outstretched hand.

After reviewing cases in which courts have found a primary assumption of risk and finding none involving organized, noncompetitive, recreational bicycle riding, the court nonetheless found that “this sport” fell within the category of cases to which the primary assumption of risk doctrine applies. (Id. at 1221.)

Therefore, unless plaintiff alleges facts from which “conduct so reckless as to be totally outside the range of the ordinary activity in golf” could be inferred, primary assumption of risk precludes liability.

App. 4th 975, 994 n. 22 (“The courts have applied primary assumption of risk principles to activities other than sporting or recreational endeavors, including injuries in the workplace.”). Defendants argue that skateboarding fits within the primary assumption of risk doctrine, citing to Calhoon v. Lewis (2000) 81 Cal. App. 4 th 108, 115 (“Skateboarding is a type of activity covered by the primary assumption of the risk doctrine.

Determining whether primary assumption of the risk applies depends upon "the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport." (Knight v. Jewett (1992) 3 Cal.4th 296, 309.) "Primary assumption of the risk is an objective test. It does not depend on a particular plaintiff's subjective knowledge or appreciation of the potential for risk." (Saville v. Sierra College (2005) 133 Cal.App.4th 857, 866.)

Defendants' principal argument is that Plaintiff's claims are barred because Plaintiff assumed the risk of her harm, arguing the primary assumption of risk doctrine. The Court rejects this argument. In Fazio v.

Law Governing Primary Assumption of the Risk Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks. 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.

Jewett, supra 3 Cal. 4th 296, 318–319) Next, Defendants emphasize that the primary assumption of the risk doctrine also applies to recreational and physical activities beyond “sporting” events. (Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 333—“primary assumption of the risk is not limited to sports but applies to any physical activity that involves an element of risk or danger as an integral part of the activity.”)

LAW RE: PRIMARY ASSUMPTION OF THE RISK DOCTRINE "Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ.Code, § 1714, subd. (a)), some activities-and, specifically, many sports-are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation.

Express assumption of the risk doctrine and implied primary assumption of the risk doctrine operate similarly. Under primary assumption of the risk, defendant owes no legal duty to protect plaintiff from the particular risk of harm. This type of assumption of the risk, in which defendant's conduct did not breach a legal duty of care to plaintiff, is a complete defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 308-309; see Shin v. Ahn (2007) 42 Cal.4th 482, 498.)

They argue that the first two causes of action against them for negligence and premises liability, are barred by the doctrine of primary assumption of the risk. The primary assumption of the risk doctrine is a defense to both the negligence and premises liability causes of action.

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. . . . Primary assumption of risk is a complete bar to recovery. (Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64, 69 [citation omitted].) Primary assumption of the risk is an objective test. It does not depend on a particular plaintiffs subjective knowledge or appreciation of the potential for risk. . . .

The doctrine of primary assumption of the risk does not bar Plaintiff's action. The doctrine of primary assumption of the risk is an exception to the general rule that people "have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person. (See Civ.Code, § 1714.)" (Knight v. Jewett (1992) 3 Cal.4th 296, 315, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight).)

“[T]he physical activity of fitness training under the guidance of a personal trainer is one to which the doctrine of primary assumption of the risk applies.” ( Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326, 335.)

(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. . . . Primary assumption of risk is a complete bar to recovery. ( Childs v. County of Santa Barbara (2004) 115 Cal.

Under the doctrine of primary assumption of the risk, plaintiffs assume risks inherent in a sport by participating, and defendants generally owe no duty to protect plaintiffs from such risks, but owe a duty not to increase the risks beyond those inherent in the sport. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107-110.) Gorcey cites to Moser v. Ratinoff (2003) 105 Cal.App.4th 1211, 1221, for the proposition that Gorcey did not owe a duty to Plaintiff because of the primary assumption of risk doctrine.

Rather, they discuss the applicability of primary assumption of risk. (See CACI Nos. 471 and 472 regarding primary assumption of risk as to instructors and facilities owners, respectively.) “What the primary assumption of risk doctrine does not do, however, is absolve operators of any obligation to protect the safety of their customers.

PRIMARY ASSUMPTION OF THE RISK Defendants contend that they are entitled to judgment as a matter of law because falling is an inherent risk of running and thus the claim is barred by the primary assumption of the risk doctrine. Defendants’ argument fails. Under the primary assumption of the risk doctrine, a defendant owes no duty to protect the plaintiff who participates in a risky recreational activity from particular risks of harm that are inherent in the activity itself. (Knight v.

Nunnink (2011) 191 Cal.App.4th 826, 838-839, states, “One exception to the general rule of due care frequently applied in cases involving sports is the doctrine of primary assumption of the risk. [Citation.] The seminal case in the area is Knight v. Jewett (1992) 3 Cal.4th 296, 313, 11 Cal.Rptr.2d 2, 834 P.2d 696 (Knight ). Knight involved an action by a participant in a touch football game who was injured by the defendant, another participant. [Citation.]

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. . . . Primary assumption of risk is a complete bar to recovery. (Childs v. County of Santa Barbara (2004) 115 Cal.

Defendant contends that these claims are barred due to primary assumption of the risk and express assumption of the risk. A. Primary Assumption of the Risk Under the doctrine of assumption of the risk, a defendant generally does not “have a duty to protect the plaintiff from the risks inherent in” a sport or to eliminate risk from the sport. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1004.)

Primary Assumption of the Risk Assumption of risk falls into two categories: primary and secondary. Primary assumption of risk occurs when a plaintiff voluntarily engages in a sport or activity with inherent risks. 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.

Finally, Defendant asserts Plaintiff's cause of action is precluded by application of the primary assumption of the risk doctrine. "The doctrine of primary assumption of risk is applied to certain sports or sports-related recreational activities where 'conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself' and their removal would alter the nature of the sport. [Citation.]" (Childs v.

Issue 4, 5 and 6: Primary Assumption of the Risk Issues 4, 5 and 6 raise the same undisputed facts as issues 1, 2, and 3. CACI Instruction 409 specifically addresses the liability of instructors, trainers, and coaches in the context of primary assumption of the risk and is directly relevant.

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. . . . Primary assumption of risk is a complete bar to recovery.” Childs v. County of Santa Barbara (2004) 115 Cal.

Primary assumption of risk occurs when, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular inherent risk of harm in the activity that caused the injury. Primary assumption of risk operates as a complete bar to the plaintiff's recovery.

Under the doctrine of primary assumption of the risk, application of the test varies slightly depending on whether the defendant is a co-participant versus an instructor: co-participants have a duty not to act recklessly outside the bounds of the sport; instructors have a duty not to increase the risks inherent in the activity. See Avila, supra, at 162.

DISCUSSION Under the primary assumption of the risk doctrine, a defendant owes no duty to protect the plaintiff who participates in a risky recreational activity from particular risks of harm that are inherent in the activity itself. Knight v. Jewett (1992) 3 Cal. 4th 296, 316.

Defendants fail to demonstrate the absence of a triable issue of fact as to whether the doctrine of primary assumption of risk applies to Plaintiff's negligence claim Defendants contend that there is no triable issue of fact as to whether Plaintiff's negligence claim is barred by the doctrine of "primary assumption of risk."

Primary Assumption of Risk Oak Tree alternatively moves for summary judgment/summary adjudication on grounds of primary assumption of risk. As with the gross negligence claim, Oak Tree denies it owed any legal duty to Plaintiff in that Oak Tree undertook no duty to supervise the simulation, and an accidental shooting by a co-participant constitutes an inherent risk in gun range exercises.

The trial court ruled the doctrine of primary assumption of the risk barred liability because, as a matter of law, riding a scooter is a recreational activity, and falling is an inherent risk of the activity. The trial court was reversed.

Analysis re: Primary Assumption of the Risk The elements of a cause of action for negligence are duty, breach, causation, and damages.” (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)

“Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports. Primary assumption of risk is a complete bar to recovery. [¶] Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity.

It cannot be determined from the Complaint that the affirmative defense of primary assumption of the risk necessarily bars the causes of action. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990; Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326; Complaint ¶13.) Defendants are to file an Answer within 14 days notice of service of this order.

Defendants contend the doctrine of primary assumption of the risk bars Plaintiff’s claims. In Opposition, Plaintiff asserts that the doctrine of primary assumption of the risk does not apply as she was not a spectator of the lacrosse game and even if it did, the FAC alleges that Defendants increased the inherent risks of the sporting activities The Reply reasserts many of the same arguments made in the moving papers. Analysis I.

Defendants contend the doctrine of primary assumption of the risk bars Plaintiff’s claims. In Opposition, Plaintiff asserts that the doctrine of primary assumption of the risk does not apply as she was not a spectator of the lacrosse game and even if it did, the FAC alleges that Defendants increased the inherent risks of the sporting activities The Reply reasserts many of the same arguments made in the moving papers. Analysis I.

Defendants contend the doctrine of primary assumption of the risk bars Plaintiff’s claims. In Opposition, Plaintiff asserts that the doctrine of primary assumption of the risk does not apply as she was not a spectator of the lacrosse game and even if it did, the FAC alleges that Defendants increased the inherent risks of the sporting activities The Reply reasserts many of the same arguments made in the moving papers. Analysis I.

The instructor’s personal participation in the event causing the injury does not preclude the primary assumption of risk from applying. Bushnell v. Japanese- American Religious & Cultural Center (1996) 43 Cal.App.4th 525, 531 [“The doctrine of primary assumption of risk can apply even if the defendant was in some manner in control of the situation and thus in a better position than the plaintiff to prevent the plaintiff’s injury”].

¿¿“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 . . . . Primary assumption of risk is a complete bar to recovery.”¿ (Childs v. County of Santa Barbara¿(2004) 115 Cal.App.4th 64, 69¿[citation omitted].)¿ “Primary assumption of the risk is an objective test.¿ It does not depend on a particular plaintiff’s subjective knowledge or appreciation of the potential for risk . . . .

Analysis Re: Primary Assumption of the Risk The elements of a cause of action for negligence are duty, breach, causation, and damages. (Johnson v. Prasad (2014) 224 Cal.App.4th 74, 78.) Under the doctrine of primary assumption of the risk, defendants do not owe a duty of care to a plaintiff in certain situations, depending on the nature of the activity. (McGarry v. Sax (2008) 158 Cal.App.4th 983, 999.)

Primary Assumption of the Risk “‘Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk...bar[s] recovery because no duty of care is owed as to such risks.’(Citation.)” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357.)

Defendants also contend the Primary Assumption of Risk doctrine bars Plaintiff’s claims. In Nalwa , the California Supreme Court in addressing the applicability of the Doctrine of Primary Assumption of Risk held in part that: Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous.

Only “primary assumption of the risk” acts as complete defense; cases of secondary assumption of the risk are merged into comparative fault, and the trier of fact, in apportioning loss resulting from the injury, may consider the parties’ relative responsibility. “Thus, primary assumption of the risk applies to the question of duty and secondary assumption of risk applies to the calculation of damages. (Shin v. Ahn (2007) 42 Cal.4th 482, 499).

Since the existence of the primary assumption of the risk is dependent upon the existence of a legal duty, and since duty is an issue of law to be decided by the court, the applicability of that defense is amenable to resolution by summary judgment. (Id) [Emphasis Added] Under the circumstances presented, this is not a baseball field that is held out to be a pristine, well-manicured field.

Whether the primary assumption of risk doctrine applies is a question of law and “depends on the nature of the sport or activity in question and on the parties' general relationship to the activity.” (Knight v. Jewett, supra, 3 Cal.4th at p. 313.) “The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” (Ferrari 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. . . . Primary assumption of risk is a complete bar to recovery.” Childs v. County of Santa Barbara (2004) 115 Cal.

Under a primary assumption of risk analysis, the coaches had "a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." Although the District moving papers cite the Fortier decision, the District doesn't discuss the coaches' duty not to increase the risks inherent in the sport until the reply papers. The District has not met its burden under CCP §437c on the issue of primary assumption of the risk.

Under a primary assumption of risk analysis, the coaches had "a duty to use due care not to increase the risks to a participant over and above those inherent in the sport." Although the District moving papers cite the Fortier decision, the District doesn't discuss the coaches' duty not to increase the risks inherent in the sport until the reply papers. The District has not met its burden under CCP §437c on the issue of primary assumption of the risk.

Defendants also contend the Primary Assumption of Risk doctrine bars Plaintiff’s claims. In Nalwa , the California Supreme Court in addressing the applicability of the Doctrine of Primary Assumption of Risk held in part that: Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others (Civ. Code, § 1714, subd. (a)), some activities—and, specifically, many sports—are inherently dangerous.

The doctrine of primary assumption of the risk simply does not apply in this case. Moreover, to the extent the doctrine of secondary assumption of the risk applies, as stated previously, that doctrine has been merged into principles of comparative fault in California. (Cheong v. Antablin, supra, 16 Cal.4th at p. 1067, 68 Cal.Rptr.2d 859, 946 P.2d 817.)

“When applicable, primary assumption of the risk operate[s] as a complete bar to the plaintiff’s recovery.” (Hass v. RhodyCo Productions (2018) 26 Cal.App.5th 11, 34 [citation and quotation marks omitted].) For example, the doctrine of primary assumption of the risk applied in Nalwa where the plaintiff alleged injuries from a collision of bumper cars, because low-speed collisions are inherent in a bumper car ride. (Nalwa, 55 Cal.4th at 1157.)

Sports, (1988) 206 Cal. App. 3d 1284, 1288. Defendant does not owe a duty to protect the Plaintiff from injury from a particular risk of harm inherent in an activity engaged in by Plaintiff. “Primary assumption of the risk” acts as a complete bar to Plaintiff’s complaint. Knight v. Jewett (1992) 3 Cal.4th 296, 315-316. Whether primary assumption of the risk applies can be determined as a matter of law if the facts are not in dispute. Childs v. County of Santa Barbara (2004) 115 Cal. App. 4th 64, 69.

Summary Judgment: As to summary judgment, Defendant asserts, Plaintiff’s (Enrico Galaviz) “. . . right to recovery for alleged injuries he sustained due to a fall during an exercise class is barred by California law pursuant to the doctrine of primary assumption of the risk.” (Motion; 1:12-13.) The court finds that Defendant has carried its initial burden of demonstrating that the primary assumption of the risk doctrine bars Plaintiff’s causes of action for premises liability and negligence.

Primary Assumption of the Risk Doctrine “‘Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk...bar[s] recovery because no duty of care is owed as to such risks.’(Citation.)” (West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357.)

Based on the foregoing, Ciclavia’s motion for summary judgment/adjudication on the grounds Plaintiffs’ 1 st and 3 rd causes of action are barred by the primary assumption of the risk doctrine [Issue No. 1] is denied. In light of the finding that the primary assumption of the risk doctrine does not apply to underlying event, Ciclavia’s motion for summary adjudication of Ko’s 4 th cause of action, on the grounds it is barred by the primary assumption of the risk doctrine, is also denied.

Thus, there is a triable issue as to whether primary assumption of risk bars Plaintiff’s claim under the facts in this case. Accordingly, the motion for summary adjudication as to the defense of primary assumption of risk is denied. ISSUE THREE: PUNITIVE DAMAGES: As discussed above, the evidence submitted in the opposing papers raise a triable issue as to whether Defendant Allan acted with malice, i.e., whether he engaged in a conduct intended to cause injury to Plaintiff.

In a sports setting, under the primary assumption of the risk doctrine, the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107 [emphasis added].)

In a sports setting, under the primary assumption of the risk doctrine, the plaintiff is said to have assumed the particular risks inherent in a sport by choosing to participate and the defendant generally owes no duty to protect the plaintiff from those risks. (Luna v. Vela (2008) 169 Cal.App.4th 102, 107 [emphasis added].)

Primary assumption of risk occurs where a plaintiff voluntarily participates in a sporting event or activity involving certain inherent risks. For example, an errantly thrown ball in baseball or a carelessly extended elbow in basketball are considered inherent risks of those respective sports…[citations.]…. Primary assumption of risk is merely another way of saying no duty of care is owed as to risks inherent in a given sport or activity.

THERE IS AT LEAST A TRIABLE ISSUE OF FACT AS TO WHETHER THE PRIMARY ASSUMPTION OF THE RISK DOCTRINE BARS PLAINTIFF’S CLAIMS Under the primary assumption of the risk doctrine, a defendant owes no duty to protect the plaintiff who participates in a risky recreational activity from particular risks of harm that are inherent in the activity itself. Knight v. Jewett (1992) 3 Cal. 4th 296, 316.

Nor was she participating in a physical or recreational activity of the type where the doctrine of primary assumption of the risk has been applied. She simply walked into a horse trailer and attempted to stand next to the horse to take a photo with her phone. Therefore, the doctrine of primary assumption of the risk does not apply to plaintiff’s claims.

To summarize, Primary assumption of risk arises where a plaintiff voluntarily participates in an activity or sport involving certain inherent risks; primary assumption of risk . . . bar[s] recovery because no duty of care is owed as to such risks. ( West v. Sundown Little League of Stockton (2002) 96 Cal.App.4th 351, 357 [cleaned up].) In Nunez v.