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Making The California Assumption Of Risk Doctrine Work For You

Law360 - 5/12/15

The doctrine of assumption of risk is a legal defense that may operate to relieve a California owner or occupier of and from liability to third parties who are injured on their premises. One species of the doctrine, primary assumption of risk, has seen a recent expansion. This is welcome news. At the same time, courts have become more cautious in their application of the express assumption of risk doctrine. Land owners and occupiers should understand the importance of both of these developments.

Primary Assumption of Risk

The primary assumption of risk doctrine may insulate a defendant from liability where a plaintiff is injured due to a risk or danger that is inherent in an activity in which the plaintiff chose to participate.[1][2] The doctrine operates by relieving a defendant of any legal duty to a plaintiff. The risks assumed are not those created by the defendant’s negligence, but rather by the nature of the activity itself. [3] The rationale is that some activities are inherently dangerous and imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. To avoid this chilling effect, owners or occupiers of premises or businesses in which a plaintiff engages in these activities, have no duty to eliminate those risks.[4]

Whether the plaintiff was reasonable or unreasonable in choosing to subject himself to the risk is irrelevant.[5] This is because the focus is on the nature of the activity and defendant’s role in that activity.[6] [7] The plaintiff’s subjective awareness or expectations are irrelevant and it does not matter if the plaintiff subjectively was aware of the risk or impliedly consented to relieve or excuse the defendant from a duty of care.[8] [9] [10]

Until recently, the assumption of risk doctrine only applied to participants in active sports or those injured while engaged in recreational activities permitted by a property owner.[11] It has now been expanded to apply to nonsporting activities and even occupational hazards where the plaintiff has accepted employment involving a known risk of danger. [12][13] The rationale is that those hired to confront or manage a hazardous condition may not sue their clients for injuries caused by the very risks they were retained to handle.[14] In fact, the doctrine may operate as a defense for injuries arising from almost any physical activity that involves an element of risk or danger as an integral part of the activity.[15] For example, a promoter of the popular Burning Man festival successfully defended a personal injury claim brought by a participant who was burned after approaching flames emanating from a 60-foot-tall figure that had been set alight by festival goers. Under the primary assumption of risk doctrine, the California court of appeal concluded the defendant owed plaintiff no duty of care.[16] The burning of the wooden figure constituted an integral and dangerous risk of participating in the festival, one plaintiff chose to confront.

There are important limitations. One arises where a plaintiff can demonstrate the defendant unreasonably increased the risks to plaintiff over and above those inherent in the activity.[17] [18] [19] In Fazio v. Fairbanks Ranch,[20]a musician was injured when he fell off a stage that he alleged had been constructed by the defendant property owner in a manner that unreasonably increased the risk of falling. The stage was built so that a gap existed between the stage and the wall in the area where plaintiff fell.[21] The court of appeal concluded that falling off stage is an inherent risk for all stage performers, and that risk cannot be eliminated entirely without altering the fundamental nature of performing on stage.[22] Therefore, the defendant was under no duty to protect the plaintiff from this inherent risk and the assumption of risk doctrine could preclude liability. However, the assumption of risk doctrine did not apply because it was unclear whether the configuration and construction of the stage had increased the plaintiff’s risk of injury.[23]

Several other limitations also apply. The defense does not extend to conduct by the defendant that is in violation of the law,[24] nor to actions by a defendant that were intentional or amounted to willful misconduct.[25] The defense also may not apply where a law enacted for the safety of a worker was violated, and this contributed to the worker’s injury.[26]

Express Assumption of Risk Doctrine

An express assumption of risk occurs when the plaintiff, in advance, expressly consents to relieve the defendant of an obligation of conduct toward him and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.[27] As a result of the express agreement, the defendant owes no duty to protect the plaintiff from an injury-causing risk.[28] The agreement is typically referred to as a release.

A release must be easily readable and conspicuous.[29] In other words, it must be “clear, explicit and comprehensible in each of its essential details.”[30] The language that limits liability must be stated understandably, in words that are part of the working vocabulary of the average layperson.[31] A release does not have to be perfect, but it must be sufficient to apprise the party of the effect of signing the document.[32] Although an enforceable release does not need to recite every conceivable risk within its intended scope nor the specific risk that caused plaintiff’s injury, the act of negligence resulting in plaintiff’s injury must be reasonably related to the object or purpose for which the release was signed.[33]

In Huverserian v. Catalina Scuba Luv, a scuba diver ran out of air while diving and died of cardiac arrest.[34] His family brought a wrongful death action against the lessor of the scuba diving equipment. The diver had signed an equipment rental agreement that contained a release. The relevant portion was titled “Equipment rental agreement, liability release and assumption of risk of scuba and snorkel gear for boat dives or multiple day rentals.” It was undisputed the diver had not rented the equipment for either a boat dive or a multiple day rental. Rather, after renting the equipment the diver entered the water from shore. The court of appeal concluded the language releasing the defendant from liability was expressly limited to “boat dives or multiple day rentals.” A person reading the rental agreement who was neither a boat diver nor a multiple day rentor could reasonably conclude he or she was not among the category of people who had relieved the equipment lessor of liability. The express assumption of risk doctrine did not apply.

In contrast, in Madison v. Superior Court, a release in a contract for scuba diving lessons expressly stated that it was the student's intent to exempt and relieve the defendants from liability for any personal injury related to the defendant’s scuba instruction.[35] The student drowned under mysterious circumstances during the scuba diving class. The California court of appeal concluded the student’s express release was sufficient to cover the particular risk of injury which resulted in his death. It was irrelevant if the student was unaware of the dangers that ultimately led to his drowning, at the time he signed the release. “Given the express provisions of the agreement, the law imposes no requirement [the student] have had a specific knowledge of the particular risk which resulted in his death. Under the agreement [the student] clearly accepted responsibility for the consequences of any act of negligence by the defendants.” (Id., 596) While the terms of a release must be clear, this “does not mean that every possible specific act of negligence of the defendant must be spelled out in the agreement or even discussed by the parties.”

In Grebing v. 24 Hour Fitness[36] a patron was injured while exercising in a gym operated by 24 Hour Fitness. The clip for a “low row machine” failed, causing the handlebar to break free from a cable and strike plaintiff in the forehead. Before the accident, another gym member had warned a manager that the clip appeared “crooked.” The California court of appeal concluded a written release signed by the plaintiff clearly stated defendant would not be liable for its own negligence: “24 Hour ... will not be liable for any injury ... resulting from any negligence of 24 Hour or anyone on 24 Hour's behalf…” Although the plaintiff argued the “release did not cover failure to properly assemble or maintain the low row machine,” the court of appeal concluded the release “expressly extends to any injury while using any equipment at a 24 Hour facility.” As such, the plaintiff had “assumed responsibility for the risks arising from his use of 24 Hour's facilities, services, equipment, or premises.”

In many scenarios, a well-fashioned release will bar a plaintiff’s claim for personal injuries. Where it does not, the expansion of the primary assumption of risk doctrine tononrecreational activities may supply a secondary defense for owners or occupiers of land. But landowners and occupiers must resist the temptation for complacency. They should insist their legal counsel prepare a well-crafted release for distribution to patrons or guests, which may insulate a property owner or occupier from liability, even if the exact mechanism of the injury remains unknown or unclear. The cause of the plaintiff’s injury does not need to be specified in the release. The injury need only be reasonably related to the purpose of the landowner or occupier in asking the plaintiff to sign the document. The language of the release should be as broad as possible and should not be written so as to be self-limiting in its application. Experienced legal counsel should be consulted.

—By Julian Pardo de Zela, Ropers Majeski Kohn & Bentley PC

Julian Pardo de Zela is a senior associate in Ropers Majeski's San Jose office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326.

[2] Luna v. Vela (2008) 169 Cal.4th 102, 111.

[3] Knight v. Jewett (1992) 3 Cal.4th 296

[4] Nalwa v. Cedar Fair (2012) 55 Cal.4th 1148, 1162).

[5] Knight v. Jewett (1992) 3 Cal.4th 296<.

[6] Shin v. Ahn (2007) 42 Cal.4th 482, 489.

[7] Shin v. Ahn (2007) 42 Cal.4th 482, 489.

[8] Knight v. Jewett (1992) 3 Cal.4th 296.

[9] Knight v. Jewett (1992) 3 Cal.4th 296.

[10] Lilley v. Elk Grove Unified School District (1998) 68 Cal.App.4th 939..

[11] Calhoon v. Lewis (2000) 81 Cal.App.4th 108; California Civil Code 846..

[12] Gregory v. Cott (2014) 59 Cal.4th 996.

[13] Priebe v. Nelson (2006) 39 Cal.4th 1112, 1116.

[14] Gregory v. Cott (2014) 59 Cal.4th 996.

[15] Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326..

[16] Beninati v. Black Rock (2009) 175 Cal.App.4th 650..

[17] Beninati v. Black Rock (2009) 175 Cal.App.4th 650..

[18] Luna v. Vela (2008) 169 Cal.4th 102, 111..

[19] Knight v. Jewett (1992) 3 Cal.4th 296.

[20] Fazio v. Fairbanks Ranch Country Club (2015) 2015 WL 367100.

[21] Fazio v. Fairbanks Ranch Country Club (2015) 2015 WL 367100, 1.

[22] Fazio v. Fairbanks Ranch Country Club (2015) 2015 WL 367100, 3.

[23] Fazio v. Fairbanks Ranch Country Club (2015) 2015 WL 367100, 4.

[24] Huff v. Wilkins (2006) 138 Cal.App.4th 732..

[25] Distefano v. Forester (2001) 85 Cal.4th 1249, 1272; Rostai v. Neste Enterprises (2006) 138 Cal.App.4th 326; Kahn v. East Side (2003) 31 Cal.4th 990; California Civil Jury Instructions No. 410.

[26] Vine v. Bear Valley Ski Co. (2004) 118 Cal.App.4th 577; Labor Code 2801.

[27] (Saenz v. Whitewater Voyages (1990) 226 Cal.App.3d 758, 764).

[28] Knight v. Jewett (1992) 3 Cal.4th 296.

[29] Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.

[30] Westlye v. Look Sports Inc. (1993) 17 Cal.App.4th 1715, 1731.

[31] Leon v. Family Fitness Center (1998) 61 Cal.App.4th 1227, 1332.

[32] Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.

[33] Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356-57.

[34] Huverserian v. Catalina Scuba Luv (2010) 184 Cal.App.4th 1462.

[35] Madison v. Superior Court (1988) 203 Cal.App.3d 589.

[36] Grebing v. 24 Hour Fitness (2015 WL 709117)