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Assumption Of The Risk In Sports

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A current analysis of the defense of assumption of the risk in sports.

A current analysis of the defense of assumption of the risk in sports.

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Assumption Of The Risk In Sports Assumption Of The Risk In Sports Presentation Transcript

    • Assumption of Risk
    • An Overview of California Law
    • By Eric Ratinoff & Adrian Lambie
                                                  
    • Background
    • Li v. Yellow Cab Co. (1975) 13 Cal.3d 804
      • Facts: this case arose from a traffic accident between the plaintiff and the defendant, in which both were found to have been driving negligently. Under the doctrine of contributory negligence as it existed at the time, this would have prevented any recovery whatsoever by the plaintiff. The California Supreme Court, aware of the recent trend toward comparative rather than contributory negligence, took the opportunity to reconsider the state's tort law on the subject.
      • Abandoned contributory negligence as a complete bar to recovery
      • Endorsed a comparative negligence scheme
    Slide 1 of 19
    • Background
    • Li v. Yellow Cab Co. (1975) 13 Cal.3d 804
      • Identified to variations of the assumption of risk doctrine
        • Unreasonable implied assumption of risk
          • Where a plaintiff unreasonably undertakes to encounter a known risk created by a defendant’s negligence
          • Merged into the comparative negligence scheme
        • Express reduction of the duty of care
          • Where a plaintiff agrees to relieve a defendant of an obligation of reasonable conduct
          • Remains a complete bar to recovery
      • Did not expressly address reasonable implied assumption of risk
      • Led to considerable disagreement among the appellate courts
    Slide 2 of 19
    • Background
    • Segoviano v. Housing Authority (1983) 143 Cal.App.3d 162
      • Facts: the plaintiff filed suit after being injured during a flag football game sponsored by the defendant. Applying principles of comparative negligence, the jury returned a verdict allocating 30 percent of the fault to the plaintiff and the other 70 percent to defendant. The court of appeal reversed.
      • Reasonable implied assumption of risk cannot be used to preclude or reduce recovery.
    • Ordway v. Superior Court (1988) 198 Cal.App.3d 98
      • Facts: the plaintiff jockey was injured when during a racing accident caused by a horse owned by the defendant. The trial court denied the defendant’s motion for summary judgment, but the court of appeal reversed.
      • A defendant’s reasonable implied assumption of risk is an absolute bar to recovery.
    Slide 3 of 19
    • Background
    • Knight v. Jewett (1992) 3 Cal.4th 296
      • Facts: the plaintiff filed suit after the defendant broke the plaintiff’s finger during a game of touch football. Finding that the plaintiff had reasonably assumed the risk of her injury, the trial court entered summary judgment for the defendant and the court of appeal affirmed. After granting review to resolve conflicts among the courts of appeal, the California Supreme Court affirmed.
      • Rejected the distinction between reasonable and unreasonable assumption of risk
        • It would be illogical to treat a plaintiff who reasonably assumed a known risk less favorably than one who unreasonably assumed such a risk.
    Slide 4 of 19
    • Background
    • Knight v. Jewett (1992) 3 Cal.4th 296
      • New distinction
        • Primary assumption of risk
          • Occurs where a plaintiff either expressly or impliedly has consented to relieve a defendant of a duty to act in a certain way toward him
          • Operates as a complete bar to recovery
        • Secondary assumption of risk
          • Occurs when a plaintiff is aware of a risk that already has been created by the negligence of a defendant yet chooses voluntarily to encounter it anyways.
          • Plaintiff may recover subject to principles of comparative negligence
    Slide 5 of 19
    • Background
    • Knight v. Jewett (1992) 3 Cal.4th 296
      • Implications for cases arising from participation in active sports
        • Two factors determine whether a case will be analyzed under primary or secondary assumption of risk
          • The nature of the sport itself
          • The relationship of the plaintiff and defendant to the sport
        • Under the primary assumption of risk doctrine, a defendant is entitled to summary judgment unless
          • She intentionally injured a plaintiff
          • Engaged in conduct that was so reckless as to be totally outside the range of ordinary activity involved in the sport
          • Or increased the risk to the plaintiff beyond the risk inherent in the sport
    Slide 6 of 19
    • Background
    • Ford v. Gouin (1992) 3 Cal.4th 339
      • Facts: the plaintiff was injured while waterskiing behind a boat operated by the defendant. The California Supreme Court affirmed summary judgment in favor of the defendant under the primary assumption of risk doctrine.
      • Extended the reasoning of Knight to noncompetitive but active sports
    • Yancey v. Superior Court (1994) 28 Cal.App.4 th 558
      • Facts: the plaintiff discus thrower was injured while retrieving her discus when a discus thrown by the defendant struck her in the head. The court of appeal concluded that primary assumption of risk did not apply.
      • The plaintiff’s injury was not an inherent risk of the sport because discuses are not generally thrown at others
    Slide 7 of 19
    • Background
    • Freeman v. Hale (1994) 30 Cal.App.4th 1388
      • Facts: the plaintiff skier filed suit after after colliding with the defendant skier at a resort. The defendant had been drinking heavily before the accident. The court of appeal ordered judgment for the plaintiff.
      • Refined the Knight analysis
        • Conduct is totally outside the range of ordinary activity involved in a sport, and any risks resulting from that conduct are not inherent to the sport, if the prohibition of the conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport
        • Because the doctrines of primary and secondary assumption of risk relate directly to duty, their application is a question of law to be resolved by the court
    Slide 8 of 19
    • Background
    • Staten v. Superior Court (1996) 45 Cal.App.4th 1628
      • Facts: during a group skating session, the plaintiff skater was badly cut by the defendant skater’s skate. In the ensuing personal injury lawsuit, the plaintiff also named the owner of the skating rink as a defendant. The court of appeal affirmed summary judgment for the defendants under the primary assumption of risk doctrine.
      • Clarified the role of expert testimony in assumption of risk cases
        • Although duty is a question of law, courts may hear expert evidence on the factual nature of an unknown or exotic sport
        • Expert testimony should not reach the ultimate legal question of whether or not a given risk is inherent to a given sport
    Slide 9 of 19
    • Background
    • The Placer County ski cases
      • Zubrick v. Ford (1996) 48 Cal.App.4th 1834
        • Facts: the plaintiff and the defendant were each downhill skiing when they collided, and the plaintiff was seriously injured. He sued the defendant for negligence and negligence per se based upon the the defendant’s alleged violation of the Skier Responsibility Code of Placer County. The trial court found the plaintiff’s claims to be barred by primary assumption of risk, but the court of appeal reversed.
        • A legal duty may be created by statute even where such a duty would otherwise be eliminated by the plaintiff’s primary assumption of risk
        • Ordered de-published the following year by the California Supreme Court
    Slide 10 of 19
  • Review of the Defense in Sports Cases Was the Risk inherent to the Sport? Yes No Would imposing liability chill vigorous participation? No Secondary assumption of the risk Recovery subject to comparative negligence Primary assumption of the risk Intentional injury? Conduct outside the normal range? Unreasonably increased risk? Recovery barred No Yes No Yes No Yes Yes Slide 11 of 19
    • Recent Developments
    • Moser v. Ratinoff (NOT ME!) (2003) 105 Cal.App.4th 1211
      • Facts: a participant in an organized, long-distance bicycle ride on public highways brought an action against a coparticipant, alleging that the defendant was negligent in swerving into him and causing him to fall off his bicycle and sustain injuries. The trial court granted summary judgment for defendant on the basis of the primary assumption of the risk doctrine. The court of appeal affirmed.
      • Although noncompetitive, an organized bike ride is an athletic activity done for enjoyment and physical challenge, and the risk of injury caused by a swerving cyclist is inherent to the sport.
    Slide 12 of 19
    • Recent Developments
    • Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64
      • Facts: the plaintiff, an 11-year-old girl was riding her scooter on a residential sidewalk and fell over gap. The trial court granted the defendant county's motion for summary judgment, ruling that the doctrine of primary assumption of risk barred liability. The court of appeal reversed.
      • Riding a scooter is covered by the doctrine of primary assumption of risk only when the activity involves an element of danger, requires physical exertion and skill, and includes a competitive challenge
        • A triable issue of fact existed as to whether the plaintiff was riding in this manner
      • Would the public policy objective underlying the primary assumption of risk would have been served by applying the doctrine in this case?
    Slide 13 of 19
    • Recent Developments
    • Mammoth Moutain v. Graham (2006) 135 Cal.App.4th 1367
      • Facts: the defendant 17-year-old snowboarder down was descending a slope while engaged in a snowball fight. As he was preparing to throw a snowball at his brother, the defendant crashed into and injured the plaintiff ski instructor. The instructor alleged that the snowboarder was engaged in reckless and dangerous behavior at the time of the collision. The trial court granted the defendant’s motion for summary judgment based on the primary assumption of risk doctrine. The court of appeal reversed.
      • A jury could have concluded that the defendant’s conduct was so reckless as to be totally outside the range of ordinary activity involved in the sport of snowboarding
    Slide 14 of 19
    • Recent Developments
    • Huff v. Wilkins (2006) 138 Cal.App.4th 732
      • Facts: the plaintiff operator of an all terrain vehicle (ATV) was injured when the defendant’s ATV collided with his own. The defendant driver was 14—four years younger that the age required by the California Vehicle Code. The trial court granted summary judgment for the defendant, but the court of appeal reversed.
      • The primary assumption of risk doctrine applies to riding off-road vehicles
      • However, the violation of the safety regulation was not within the range of activities ordinarily involved in the sport of off-roading
        • The defendant failed to meet his burden to prove otherwise
      • This case suggests a model for reconciling statutory violations with assumption of risk
        • Although violations do not void the doctrine, they create a rebuttable presumption of unreasonable risk
    Slide 15 of 19
    • Recent Developments
    • Huff v. Wilkins (2006) 138 Cal.App.4th 732
      • Facts: the plaintiff operator of an all terrain vehicle (ATV) was injured when the defendant’s ATV collided with his own. The defendant driver was 14—four years younger that the age required by the California Vehicle Code. The trial court granted summary judgment for the defendant, but the court of appeal reversed.
      • The primary assumption of risk doctrine applies to riding off-road vehicles
      • However, the violation of the safety regulation was not within the range of activities ordinarily involved in the sport of off-roading
        • The defendant failed to meet his burden to prove otherwise
      • This case suggests a model for reconciling statutory violations with assumption of risk
        • Although violations do not void the doctrine, they create a rebuttable presumption of unreasonable risk
    Slide 16 of 19
    • Recent Developments
    • Avila v. Citrus Community College (2006) 38 Cal. 4th 148
      • Facts: the plaintiff collegiate baseball player was beaned by a pitch during a preseason game. The plaintiff sued, alleging that the defendant pitcher threw the pitch intentionally or negligently. The defendant pitcher’s college was also named as a defendant for allegedly failing to prevent the beanball. The trial and appellate court sustained the defendants’ demurred on grounds of statutory immunity. The California Supreme Court concluded that immunity did not apply, but affirmed based on the primary assumption of risk.
      • Being hit by a pitch is an inherent risk of baseball
      • It does not matter that the pitch was thrown intentionally
        • The Court listed extensive evidence showing that beanballs are part of baseball strategy
    Slide 17 of 19
    • Recent Developments
    • Shin v. Ahn (2007) 42 Cal. 4th 482
      • Facts: the plaintiff golfer was injured after being hit in the temple by a the defendant golfer’s badly-pulled tee shot. The trial court applied the primary assumption of risk doctrine, but denied the defendant’s motion for summary judgment because a triable issue of fact existed as to whether the defendant acted recklessly. The appellate court affirmed, as did the California Supreme Court.
      • Primary assumption of risk may bar recovery in entirely non-contact sports such as golf
      • Whether or not the defendant acted recklessly is a complex question of fact
        • A violation of golf’s rules of etiquette does not alone establish recklessness
    Slide 18 of 19
  • End Slide 19 of 19