Assumption of Risk: You Knew This Could Happen

You Knew this Could HappenSome of us engage in the occasional risky activity, from skydiving to bungee jumping, or even texting while walking. Some active people participate in dangerous activities more frequently, like mountain biking or skateboarding. So if you get hurt while engaged in some activity in which there is a known risk, can you still recover for your injuries? This provides an overview of the doctrine/defense called assumption of the risk (“AOR”). Distilled into layman’s terms, AOR could be summarized as “you knew this could happen.”

Since 1975, following the California Supreme Court case of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, California is a jurisdiction that allows individuals to recover even if they bear some of the responsibility for their own injuries, i.e. comparative fault. If an individual is driving while setting their fantasy football lineup on their laptop, without wearing a seatbelt, and someone turns in front of them violating the right of way, that individual can still pursue a civil claim even if their injuries were due in large part to their own negligence. A summary judgment motion brought by the defendant in that case is unlikely to succeed because the issue of comparative fault, and percentages attributable to the defendant versus the plaintiff for causing the injuries, is an issue for the trier of fact.

Seven years after the Li case, in Knight v. Jewett (1992) 3 Cal.4th 296, the California Supreme Court drew a line in the proverbial playing field. Individuals are precluded from recovering even if they did not play any part in causing their own injury simply because they were participating in a sport with known risks. AOR is essentially comparative fault on steroids and acts as a complete bar to recovery.

Knight v. Jewett involved someone getting injured during a touch football game. Since that case has been on the books, it has been cited to by over 400 cases. The courts essentially analyze: is the risk inherent in the activity, i.e., did the plaintiff know this could happen? If so, defendant owes no duty to the plaintiff to prevent them from being injured. Two examples where the AOR defense has been held applicable include long-distance recreational group bicycle riding [Moser v. Ratinoff (2003) 105 Cal.App.4th 1211] and golf [American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30.]

Thrill Seekers Beware

For an activity to fall under the AOR defense, courts traditionally analyze whether the activity 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. Accordingly, an adventure-seeking skateboarder who suffered fatal injuries on a dangerous condition of public property cannot recover [Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201], whereas someone using a scooter for mere transportation who got injured on a similar dangerous condition can [Childs v. County of Santa Barbara (2004) 115 Cal.App.4th 64.]

Courts have also expanded the complete bar well beyond merely sports activities. A UPS driver filed a lawsuit after getting injured for lifting a box that was mislabeled and ended up being heavier than expected. The Court, in Moore v. William Jessup University (2015) 243 Cal.App.4th 427, held AOR barred his recovery because lifting heavy boxes was an inherent part of his job.

The Fourth District Court of Appeal had to decide if AOR barred recovery for someone injured when they got scared at a haunted house.  Apparently the chainsaw-wielding actor played the role too well, causing the patron to run away scared, tripping along the way. The Court stated “[b]eing chased within the physical confines of The Haunted Trail by a chainsaw carrying maniac is a fundamental part and inherent risk of this amusement.” [Griffin v. Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 509.]

For any of you ‘Burners’ out there, be careful. In 2009 a court held that someone who suffered burn injuries at, guess where, Burning Man, was precluded from recovering, because, duh. [Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650.]

A defendant may even be able to use the AOR defense if intentionally injuring someone. In Avila v. Citrus Community College District (2006) 38 Cal.4th 148, the Court had to umpire a legal dispute between a pitcher and an intentionally beaned batsman. Because from time to time pitchers intentionally hit opposing players, the batter assumed the risk of being so injured. That is why defensive end Leonard Marshall could demolish Joe Montana and cause a fumble during the 1990 NFC Conference Game between the Giants and Niners, without fear of being sued.

AOR Defense Doesn’t Always Apply

Just because someone gets injured while engaging in an activity that is fundamentally dangerous does not mean the AOR defense will automatically preclude the claims. A defendant may still be held liable if they increase the risk of injury over that inherent in the activity. So while you may be precluded from recovering if injured by a fellow skier [O’Donoghue v. Bear Mountain Ski Resort (1994) 30 Cal.App.4th 188], a defendant cannot rely on the AOR defense if he got drunk before skiing into you [Freeman v. Hale (1994) 30 Cal.App.4th 1388.]

A defendant also cannot provide faulty equipment or a dangerous playing field. So while you may not be able to recover if you get injured while tubing behind a motorboat [Record v. Reason (1999) 73 Cal.App.4th 472], you can recover from the boat owner who provided defective equipment for your tubing adventure [Bjork v. Mason (2000) 77 Cal.App.4th 544.] If you get injured while practicing for a horseback riding competition you may not be able to recover [Shelly v. Stepp (1998) 62 Cal.App.4th 1288], unless perhaps the instructor set the horse jump hurdles too high [Galardi v. Seahorse Riding Club (1993) 16 Cal.App.4th 817.]

So if you host a friendly soccer game at your house and someone gets injured, you’re probably off the hook. Unless, of course, you setup the playing field on a spike-filled lawn.


Adam Carlson is a lifelong, shameless New York Giants fan and does not represent the opinions of the CCCBA or its editorial staff.

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