Its Sports and a Lot More: California Supreme Court Extends Primary Assumption of Risk to “Recreational Activities”

April 5, 2013

Insurance LawRules have consequences. In developing common law, judges must assess whether the consequences of the rules they create are beneficial, not just for the litigants before them but for society in general.

The public policy purpose of most common law rules is to discourage certain undesirable behavior or activity that has little or no benefit to society. But some activities are beneficial to a community and the individuals involved. Imposing a duty to avoid risks inherent in the activity may have a chilling effect on the activity. For example, exposing baseball players to liability for hitting an opposing batter, football players to liability for tackling an opponent, or basketball players to liability for elbowing an opponent while attempting to rebound might fundamentally alter the nature of those activities, discouraging vigorous participation and resulting in sports that are less enjoyable for participants and fans.

Recognizing this, courts have afforded special protection against liability to participants in, and sponsors or operators of, sports or sporting activities. Starting with the California Supreme Court’s decision in Knight v. Jewett, 3 Cal.4th 296, 315–316, 11 Cal.Rptr.2d 2, 834 P.2d 696 (1992), courts have employed the primary assumption of the risk principle to insulate participants in sports against liability for failing to mitigate the dangers inherent in their sports.

Rule of Limited Duty

In contrast to the traditional assumption of risk defense—which depended on evidence of plaintiff’s subjective consent to the dangers inherent in an activity and thus made summary judgment difficult to obtain—primary assumption of the risk is a rule of limited duty that can be resolved on summary judgment. In order to raise a triable issue of fact and allow  the question of the defendant’s liability to reach a jury, plaintiffs must offer evidence showing that the defendant increased the risk of injury over that inherent in the activity.

Rule Applies to “Recreational Activities”

In the years since Knight, the California courts have struggled with determining which activities deserve the protection of the primary assumption of the risk rule. The California Supreme Court’s post-Knight decisions all involved sports, which caused some lower courts to focus on the non-sport character of the activity at issue in rejecting defendant’s primary assumption of risk defense.  Others, believing that the rule only applied to sport, strained to stretch the concept of sport to make the rule applicable.

The California Supreme Court has now made debates over the meaning of sport irrelevant in primary assumption of risk cases. In a decision issued on the last day of 2012, Nalwa v. Cedar Fair, LP,  55 Cal.4th 1148, 290 P.3d 1158, 150 Cal.Rptr.3d 551, the court held that the focus in determining the applicability of the primary assumption of risk rule should be on the nature of the activity, not whether the activity qualifies as a sport. In so ruling, the court extended the primary assumption of the risk to a broader array of “recreational activities.” What remains to be seen is whether factual disputes about the nature of the activity results in more cases going to juries—the result the primary assumption of risk rule was designed to prevent.