A Waiver is not Always Necessary! Primary Assumption of Risk

By Doyice Cotten

4624086553_663e140aa9_zKathleen Swigart entered a long distance horse riding event conducted by the American Endurance Ride Conference (AERC), a national governing and record-keeping body for “long distance horse riding.” An endurance ride is  “a highly competitive and demanding sport” in which the riders follow a specific course, collecting playing cards at set checkpoints along the route to verify having completed the entire course before crossing the finish line.

At the eight-mile checkpoint, seven horses were close together in a single line. At the checkpoint, Swigart dismounted to retrieve cards for all of the riders in the group; Bruno’s horse bumped the rear of the horse of another rider which resulted in a kick, Bruno being thrown, and Bruno’s horse bolting, sideswiping two horses ahead, and striking Swigart. Swigart was injured and filed suit against Bruno alleging causes of action for reckless or intentional misconduct and negligence (Swigart v. Bruno, 2017 Cal. App. LEXIS 622).

Prior to the race, Swigart signed a waiver of liability. Bruno filed a motion for summary judgment; the trial court granted Bruno’s motion ruling that the primary assumption of risk doctrine barred the negligence cause of action and that Swigart had not shown a triable issue of gross negligence. Swigart appealed the judgment.

California Law (for the entire case and omitted citations, click here)

  1. Everyone is responsible … for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person… . Stated differently, each person has a duty to use ordinary care and ‘is liable for injuries caused by his [or her] failure to exercise reasonable care in the circumstances.’
  1. Primary assumption of risk is a defense that relieves a defendant of any duty to the plaintiff when the plaintiff is injured due to a risk that is inherent in an activity in which the plaintiff chose to participate.
  1. When applicable, primary assumption of risk operate[s] as a complete bar to the plaintiff’s recovery.
  1. Primary assumption of the risk does not depend on whether the plaintiff subjectively appreciated the risks involved in the activity; instead, the focus is an objective one that takes into consideration the risks that are ‘inherent’ in the activity at issue.
  1. Because ‘certain dangers are often integral’ to the activity itself, defendants generally have no duty to protect a plaintiff from such risks.
  1. Primary assumption of the risk does not depend on whether the defendant is competing with or against the plaintiff; the doctrine also applies to coparticipants in the same activity.
  1. A coparticipant in an active sport ordinarily bears no liability for an injury resulting from conduct in the course of the sport that is merely careless or negligent.

The Test

For these reasons, the general test is “that a participant in an active sport breaches a legal duty of care to other participants—i.e., engages in conduct that properly may subject him or her to financial liability—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.”


The court looked at video footage from a helmet camera to help determine what risks were inherent in long distance horse riding. Additionally the court examined case law on the subject finding 1) horses, “by their nature,” are unpredictable and “difficult to control.” And 2) There is always a risk that, merely by “behaving as a horse,” a horse with its rider will cause injury. Subsequently the court concluded that, as a matter of law, primary assumption of the risk bars Swigart’s claim for negligence.

Regarding the gross negligence claim, the court said such a claim requires “a want of even scant care” and recklessness involves conduct of one who “intentionally performs an act that he or she knows or should know it is highly probable that harm will result.” Watching the video footage, the court found that most of the horses in the video at times followed too closely, hence it concluded that it was an inherent risk of the activity.


Liability waivers are not the only protection available to the activity provider or participant. Primary assumption of risk can often protect against liability for injuries resulting from the inherent risks of an activity; and, as shown in this case, sometimes against ordinary negligence.

Be aware, however, that liability law varies by state. For instance, in this case, California law provided coparticipants were not liable for injuries resulting from negligence. This varies by state as well as type of activity.

Photo Credit: Thanks to Karen Blaha on Flickr.