Primary Assumption of the Risk in “Sports” Cases

Since the landmark case, Knight v. Jewett (1992) 3 Cal 4th, 296, it has been held in California that the primary assumption of risk doctrine applies to those whom participate in sports. The Knight case involved a group of friends playing touch football during half time of the 1987 Super Bowl. While jumping up to intercept a pass, the defendant collided with the plaintiff, knocking her over and landing on her hand, injuring her finger. Applying the primary assumption of the risk doctrine, the Court Supreme Court held that a participant in a sporting activity cannot hold a co-participant liable for injuries they cause. This is because the person engaging in a sporting activity “assumes” the likelihood of risk at the hands of the co-participants.

The Knight Court also held that, even when a co-participant violates a rule of the game and may be subject to internal sanctions prescribed by the sport itself, no legal liability will attach. The Court reasoned that to impose legal liability would, in effect, discourage vigorous participation in such sporting events. The Court tempered this finding by stating that a co-participant does have a limited duty of care to refrain from intentionally injuring another participant or from engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

While it appears clear that the intention of the Knight ruling was to avoid the chilling effect that the imposition of legal liability would have on participation in sporting events, case law over the years has stretched the definition of what constitutes a “sport” for the purposes of the primary assumption of the risk.

The Knight case involved participants in a touch football game. Other cases which have applied the primary assumption of the risk doctrine have included sports such as skiing, river-rafting, competitive motorcycle riding, and sailing. In Record v. Reason, (1999) 73 Cal. App. 4th 472, the Court, for the purposes of determining whether the doctrine of primary assumption of the risk applies, defined a “sport” as anything 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.” Record v. Reason, (1999) 73 Cal. App. 4th 472, 482.

There have been some cases where the parties have fought to keep their activities from being classified as a “sport” and thus keep the primary assumption of the risk doctrine from applying. Two notable cases are Shannon v. Rhodes (2001) 92 Cal App 4th 792 and Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64.

The Shannon case was one of the first to fight back against the trend of having any activity remotely related to sports falling under the primary assumption of the risk doctrine. In that case, the plaintiff was a six year old boy whom was a passenger in a boat on Lake Kaweah. Due to alleged operator error, the young boy fell overboard and was severely injured when he was either struck by the propeller or otherwise run over by the boat. The owners of the boat had the matter disposed of via summary judgment arguing that the six year old boy was engaged in the sport of motor boating as a passenger on their boat. On appeal, the Appellate Court for the Fifth District overturned the trial court’s ruling, holding that the primary assumption of the risk doctrine did not apply. The Court held, “regardless of the ‘risks’ that may be inherent in riding a boat, the existence of risk does not automatically call for the application of the doctrine…” Shannon (supra) at 798. The Court further found that the plaintiff’s activities were too benign to invoke the doctrine and that, in the circumstances presented, the boat was simply a pleasurable means of transportation and not being used for “sport” as defined in the Reason case. Last, the Court stated that its finding was unlikely to have a chilling effect on recreational boating.

In Childs, the plaintiff, an eleven year old, was injured after she rode her scooter over an uneven section of sidewalk. The defendant was granted summary judgment after asserting that riding a scooter constitutes a sport or recreational activity and that, under the primary assumption of the risk doctrine, they had no duty to protect the child against the inherent risks of that activity. On appeal, the Appellate Court for the Second District reversed the ruling, holding that riding a scooter was covered by the primary assumption of the risk doctrine only when the activity involved an element of danger, required physical exertion and skill, and included a competitive challenge – none of these factors was presented to the trial court. The Appellate Court reasoned, “Based on the undisputed facts, applying the assumption of the risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of the liability caused by inherent risks in the activity.” The Appellate Court reasoned,

“Application of the doctrine of assumption of the risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine. To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport. Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport.”

Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 71-72.

Last, the Court stated, “Falling or a comparable mishap is possible in any physical activity but is not necessarily an inherent danger of the activity.” Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 73 [emphasis in original].

Unfortunately, despite the rulings in Shannon and Childs, since the Reason ruling, Courts have applied the primary assumption of the risk to many activities that many would not consider active engagement in a “sport.” Recently, in Truong v. Nguyen (2007) 156 Cal App 4th, 865, the Appellate Court for the Sixth District held that the decedent, whom was merely a passenger on the back of a personal watercraft, and was not operating the vehicle in any way, and whom was not involved in a competition, was engaged in a “sport.” The Court reasoned that, riding on the back of such a vehicle required one to hold on to either the operator of the vehicle or the grips located on the vehicle to avoid being thrown off the craft. Holding on to the grips of the Waverunner was enough for the Court to find that the defendant owed no duty to the daughter of the plaintiffs, whom defendant killed, when he caused a collision between his Polaris and the Waverunner on which the plaintiffs’ daughter was riding. With the Truong ruling, we seem to have come far afield of the original public policy reasoning for the ruling in Knight – the encouragement of vigorous participation in sports. With Truong, the Sixth District also appears to have distanced itself from the commonsense findings in Shannon and Childs about whether the plaintiffs were actually engaged in a “sport” at the time of their injuries.

Recently, the California Supreme Court extended the Primary Assumption of the Risk Doctrine to those on certain rides at amusement parks, in Nalwa v. Cedar Fair, L.P. (2012) 2012 Cal. LEXIS 11912. The Court stated, “We conclude the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides…”

This is a dynamic area of law and one about which active persons should be aware. At present, there appears to be a split among jurisdictions as to the scope and application of the doctrine. There is no doubt that this doctrine will continue to evolve over time and may eventually be ruled upon by the Supreme Court of California.