By Doyice Cotten

The doctrine of assumption of risk provides liability protection for sport and recreation providers in many states. This post attempts to summarize or outline the doctrine in California and show how liability waivers fit in. Your state may be similar or your state may be one in which the doctrine is no longer followed. This outline is drawn from statements in Knight v. Jewett (1992), an important California Supreme Court case and a few more cases as noted. Most cases were in regard to snow skiing, but here I am simply referring to operators of active sports.

• Operator is not liable for injuries caused by risks inherent in the sport. Knight v. Jewett(1992)
• Participants in active sports assume responsibility for injuries sustained as a result of the sport’s inherent risks (primary assumption of risk). (Knight)
  • Stated another way, the defendant owes no duty of care to protect the plaintiff from the inherent risks of an active sport. (Allan v. Snow Summit, Inc.)
  • Because no duty of care is owed and the plaintiff has assumed the risk of injury, no release is necessary to absolve a defendant of liability when a plaintiff is injured as the result of an inherent risk in an active sport.
• Operator “still owe[s] a duty, however, not to increase the risks of injury beyond those that are inherent in the sport.”
  • This distinction is closely tied to the policy underlying the finding of no duty, i.e., there should be no liability imposed which would chill normal participation or fundamentally alter the nature of the sport.
  • But liability may be appropriate where the risk is not “inherent” in the sport. [in the case of provider negligence] (Allan) This is the doctrine of secondary assumption of the risk, and it is an exception to the complete defense of primary assumption of risk. (Knight)
• Comparative fault principles apply in secondary assumption of the risk
  • In comparative fault, the trier of fact considers the “plaintiff’s voluntary action in choosing to engage in an unusually risky sport – Compares reasonableness of plaintiff’s decision to encounter the risk and weighs it against the defendant’s breach of the duty not to increase the risks beyond those inherent in the active sport. “(Knight)
  • Where a plaintiff’s  ” injury has been caused by both a defendant’s breach of a legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, application of comparative fault principles will not operate to relieve either individual of responsibility for his or her actions, but rather will ensure that neither party will escape such responsibility.” (Knight; Allan)
• If participant signs a written release (waiver) that expressly holds the operator harmless for its own negligence, this triggers the doctrine of express assumption of the risk.
  • Like primary assumption of the risk, the doctrine of express assumption of the risk provides a complete defense in a negligence action.
  • Unlike both implied primary and secondary assumption of the risk, which focus on risks inherent in an active sport, express assumption of the risk focuses on the agreement itself.
  • A valid release (waiver) “operates to relieve the defendant of a legal duty to the plaintiff with respect to the risks encompassed by the agreement and, where applicable, to bar completely the plaintiff’s cause of action.” (Knight)
  • The legal issue in an express assumption of the risk case “is not whether the risk of injury is inherent; it is simply the scope of the Release.” (Hass v Rhodyco Productions, 2018)
  • Plaintiff does not need to have “specific knowledge of the particular risk that ultimately caused the injury; so long as the risk is reasonably related to the object or purpose for which the release is given.”
  • As a matter of public policy, if a participant proves the operator unreasonably increased the inherent risks to the level of gross negligence,express assumption of the risk is no longer a viable defense.

Photo Credit: Thanks to Barney Moss via Flickr.