This document discusses the legal doctrine of assumption of risk in California premises liability law. It provides an overview of key cases that established the primary and secondary assumption of risk categories. Primary assumption of risk applies when a plaintiff knows of an inherent risk and consents to relieve the defendant of their duty of care. Secondary assumption of risk applies when a plaintiff voluntarily encounters a known risk created by the defendant's negligence.

1. Assumption of Risk in Premises Liability An Overview of California Law by Eric Ratinoff Slide 1 of 16

2. Background: Assumption of Risk 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 2 of 16

3. Background: Assumption of Risk Li v. Yellow Cab Co. (1975) 13 Cal.3d 804 (cont.) 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 3 of 16

4. Background: Assumption of Risk 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 16

5. Background: Assumption of Risk Knight v. Jewett (1992) 3 Cal.4th 296 (cont.) 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 16

6. Background: Assumption of Risk Knight v. Jewett (1992) 3 Cal.4th 296 (cont.) Assumption of risk doctrine looks to the nature of the activity in which plaintiff is engaged Two factors determine whether a case will be analyzed under primary or secondary assumption of risk The nature of the activity itself The relationship of the plaintiff and defendant to the activity 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 ordinary range of activity Or increased the risk to the plaintiff beyond the risk inherent in the activity Slide 6 of 16

7. Primary Assumption of Risk 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 7 of 16

8. Primary Assumption of Risk: Releases Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351 Health club member sustained injuries while adjusting an overhead television in preparation for using an elliptical exercise machine. Though repositioning a television is arguably unrelated to the inherent risks associated with exercising… Plaintiff’s unambiguous release exculpating the health club from all injuries sustained while on the premises irrespective of whether the injury related to exercise was enforced to bar the Plaintiff’s claim . Slide 8 of 16

9. Primary Assumption of Risk Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078 Health club member signed a broad release and waiver of liability and later slipped and fell on algae growing on a swimming pool deck. Trial court granted summary judgment. Reversed by Court of Appeals, which held: Release was not enforceable against negligence per se count, which alleged that failure to keep pool area surface clean violated health code. No primary assumption of risk defense, because risk of algae growing on the pool deck causing it to become dangerously slippery is not inherent in the sport of swimming itself, so it is not a risk assumed by those who utilize the swimming pool that would relieve the pool owner of the duty to keep the deck clean. Slide 9 of 16

10. Primary Assumption of Risk: Releases Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281 Health club member brought negligence action against health club for personal injuries sustained when her foot became stuck to sticky substance on treadmill. Membership agreement stated “ The use of the facility at LA Workout naturally involves the risk of injury to yourself or your guest, whether you or someone else cause [sic] it,” but only indemnified LA Workout against injuries caused by the negligence of “any other person.” The trial court granted summary judgment based on the assumption of risk provision of the membership agreement. Slide 10 of 16

11. Primary Assumption of Risk: Releases Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281 (cont.) Trial court held that release barred all claims involving third party conduct, plaintiff had presented no evidence establishing the sticky substance materialized on the treadmill by non-third party conduct. Court of Appeals reversed: Noted that ambiguous releases should be construed against the drafter Noted that this release unambiguously applied to negligence of third-parties Held that the release did not clearly, explicitly and comprehensibly exculpate defendants from their own negligence. Material issue of fact remained as to whether sticky substance was left there as a result of defendants’ negligence. Slide 11 of 16

12. Primary Assumption of the Risk McGarry v. Sax (2008) 158 Cal.App.4th 983 Spectator at skateboard exhibition, who was injured in melee after professional skateboarder threw a skateboard into crowd brought personal injury action against owners of skateboard store on premises where performance took place. Professional skateboarder was throwing merchandise into crowd in a “product toss”; Plaintiff gestured to skateboarder to receive skateboard, caught it, then was tackled by crowd attempting to get the merchandise and injured. Summary judgment granted to defendants, affirmed on appeal. injury to spectator in “product toss” was foreseeable, but doctrine of primary assumption of the risk barred spectator's action Slide 12 of 16

13. Primary Assumption of the Risk McGarry v. Sax (2008) 158 Cal.App.4th 983 (cont.) When “[a] product is tossed into a crowd of young people who have chosen to try and retrieve it in competition with others,” the people striving to get the product are subject to the primary assumption of risk doctrine. Court of Appeals analogized the premises owner where a “product toss” takes place to a participant in an sporting competition who “ breaches a legal duty of care to other participants only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport .” Court of Appeals ruled that the premises owner owed no particular duty of care to the plaintiff, because plaintiff was an active participant in the “product toss.” Slide 13 of 16

14. Secondary Assumption of Risk Rotolo v. San Jose Sports and Entertainment, LLC (2007) 151 Cal.App.4th 307 Parents of teenager who died as result of sudden cardiac arrest while participating in ice hockey game brought wrongful death action against operators of facility, alleging that the operators had duty to notify facility's users of existence and location of automatic external defibrillator (AED) at facility Trial court sustained defendant’s demurrer, court of appeals affirmed. “ Because participants in a sport assume the risk of injury inherent in the sport, cases discussing the nature of the duty of operators of sports facilities have applied this secondary assumption of risk analysis, rather than general principles of premises liability .” Slide 14 of 16

15. Secondary Assumption of Risk Rotolo v. San Jose Sports and Entertainment, LLC (2007) 151 Cal.App.4th 307 (cont.) Sudden cardiac arrest is a risk inherent in playing strenuous sports. Plaintiff loses because cannot show that operators of ice hockey facility maintained the facility in an unsafe manner or unreasonably increase risk that athletes using it would succumb to cardiac arrest, when they failed to notify users of the facility of the existence and location of automatic external defibrillators (AEDs) at the facility. Slide 15 of 16

16. Assumption of Risk: Expert Testimony 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 activity Expert testimony should not reach the ultimate legal question of whether or not a given risk is inherent to a given activity Slide 16 of 16