• The Conundrum of California’s Primary Assumption of the Risk Doctrine Continues
  • March 11, 2015 | Author: Chad S. Tapp
  • Law Firm: Porter Scott A Professional Corporation - Sacramento Office
  • Since the 1970s, California courts have struggled to properly and definitively identify when primary or secondary assumption of risk (“AOR”) should apply. Since Li v. Yellow Cab Co., (1975) 13 Cal.3d 804, California courts have held that defendants can no longer claim a complete defense to liability where plaintiffs contributed their own negligence to an injury or voluntarily assumed a risk. These defenses were replaced by primary and secondary AOR, but the differentiation between the two has always been murky.

    Under primary AOR, a defendant can assert a complete defense to liability, where the physical activity at issue is such that imposing financial liability would deter participants from vigorously engaging in the activity. Knight v. Jewett, (1992) 3 Cal.4th 296. Under this doctrine, a defendant is not required to eliminate or reduce risks of harm. Primary AOR is most often applied in the context of “active sports.” Knight v. Jewett, (1992) 3 Cal.4th 296.

    So, what exactly qualifies as an “active sport”?

    In the recent case of Carl Kindrich III v. The Long Beach Yacht Club, the Fourth Appellate District did not allow a Yacht Club to claim a primary AOR defense because it found Plaintiff to be a “passenger” rather than a “participant” in the physically active sport of sailing. The Long Beach Yacht Club allowed Plaintiff to use a marina owned yacht to scatter his late father’s ashes at sea. Plaintiff broke his leg after jumping from the still-moving yacht onto the dock. In finding that the Yacht Club owed Plaintiff a duty of care, the court looked to the general activity of “sailing” rather than the specific act of “jumping.” “Disembarking from the boat...be it leaping, jumping, stepping off or walking the gangplank, did not turn his activity into an ‘active sport’.” Thus, the court concluded that the Yacht Club could not claim a primary AOR defense. The minority disagreed, finding that the primary AOR defense should apply because the specific act of “jumping onto the dock” not “sailing” was the relevant “active sport.” This case is yet another example of the dichotomy among California courts when applying primary AOR.

    The Kindrich case continues the courts’ tradition of ambiguous and unpredictable application of the primary and secondary AOR standards. As such, companies providing services at all analogous to the above would be well advised to initiate or continue the practice of requiring consumers to sign written releases of liability prior to entering the premises or partaking in the company’s services. If you are involved in a similar type dispute, you are strongly encouraged to contact your legal counsel for additional information on circumventing the complexities of primary and secondary AOR.