Primary Assumption of the Risk
In California law primary assumption of the risk doctrine was first set forth in Knight v. Jewett (1992). The doctrine of primary assumption of risk is applicable to sports or sports-related recreational, activities where the conduct or conditions that otherwise can be considered dangerous, are usually the essential part of the sport itself and their elimination would change the nature of the sport. Primary assumption of risk arises where a plaintiff willingly engages in a sport or activity involving certain inherent risks. Primary assumption of risk usually absolves the defendant of a duty of care toward the plaintiff with regard to injury incurred in the course of a sporting or sports-related recreational activity covered by the doctrine. A person can be only found guilty if he intentionally injures another one or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
When Can a Plaintiff Bring a Claim?
When a person is injured while playing sports or engaging in another recreational activity, he can seek financial compensation for the caused injuries against the responsible party through a California personal injury lawsuit.
According to CACI 470 if the plaintiff claims that he was harmed while participating in sport or other recreational activity, and the defendant is responsible for that harm, he must be able to prove all of the following elements to establish the claim.
- Defendant either intentionally caused injury to the plaintiff or acted so recklessly that his conduct was entirely outside the range of ordinary activity
- Plaintiff was harmed
- Defendant’s conduct was a substantial factor in causing harm to the plaintiff.
Conduct, Which Is Outside the Range of Ordinary Activity
Conduct is considered entirely outside the range of ordinary activity in case it:
- Increased the risks to the plaintiff
- Can be prohibited without discouraging vigorous participation or otherwise essentially changing the sport or sports-related recreational activities.
A person can’t be found responsible for injuries resulting from conduct that was merely careless, accidental, or negligent
Secondary Assumption of the Risk
Secondary assumption of the risk refers to cases when the defendant owes the plaintiff a legal duty to protect him from a particular injury or harm, but the plaintiff proceeds to encounter the risk imposed by the defendant’s breach of duty. Cases, which involve secondary assumption of the risk are merged into comparative negligence, which is a legal standard dealing with conditions, where two parties to an action are partially at fault.
According to CACI 404 plaintiff’s damages aren’t recoverable to the extent his own negligence contributed to the caused injuries, and will be proportionately reduced to reflect the percentage of his fault. Thus, in California law, plaintiff can still recover damages after his percentage of fault has been deducted, even in case his degree of negligence was more that the defendant’s. Though, it is important to mention, that comparative negligence doctrine only applies to cases where the plaintiff’s conduct wasn’t intentional.