Assumption of the risk is a legal principle that shifts liability for injury to a person who voluntarily chooses to engage in sports or other inherently risky activities. In California, a plaintiff who has “assumed the risk” may be barred from recovering in a personal injury lawsuit unless:
- The defendant was grossly negligent or reckless or intentionally injured the plaintiff, or
- The defendant’s conduct was entirely outside the range of what someone would ordinarily be expected to do during such activity.1
Common situations in which assumption of the risk is asserted in California include:
- Lawsuits for sports injuries at school,
- Gym or fitness center injuries,
- Workplace accidents, and
- Activities for which the plaintiff has signed a “liability waiver and assumption of the risk” agreement.
To help you better understand “assumption of the risk” in California personal injury lawsuits, our California personal injury lawyers discuss, below:
- 1. What is “assumption of the risk”?
- 2. When does the doctrine not apply?
- 3. What if the plaintiff signed a liability waiver?
- 4. How can a California personal injury attorney help?
In general, people in California have a duty to use reasonable care to avoid injury to others.2
But there are exceptions to this rule. An important one is California’s “assumption of the risk” doctrine. The California Supreme Court established the doctrine in 1992 in a case called Knight v. Jewett.
In Knight, the California Supreme Court differentiated two types of assumption of the risk:
- “Primary assumption of the risk” — in which the risk of injury is such an inherent part of an activity that the defendant has no liability for ordinary negligence, and
- “Secondary assumption of the risk” — in which the defendant still owes a duty of care to the plaintiff.
In Knight, the court held that a defendant is not liable when a plaintiff gets injured due to a risk or danger that is inherent in an activity, such as a sport, in which the plaintiff chooses to participate.
As the court explained:
“Some activities are inherently dangerous and imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. To avoid this chilling effect, owners or occupiers of premises or businesses in which a plaintiff engages in these activities have no duty to eliminate those risks.”
This type of situation – in which the defendant owes no duty of care to prevent ordinary negligence — is sometimes referred to as “primary” assumption of the risk.
Example: People who play baseball at their local park assume the risk of getting hit accidentally by a pitch. It is a risk inherent in the game of baseball.3
In some situations, “assumption of the risk” does not completely bar a plaintiff’s recovery. Rather, it subjects them to California’s “comparative fault” law.4
These are cases in which the risk of injury is not an inherent result of the activity or the activity itself is not lawful. If the plaintiff nevertheless assumes a risk of injury anyway, it is known as “secondary assumption of the risk.”
In such a case, the trier of fact (usually a jury) will have to decide to what extent each party is to blame for the plaintiff’s injury.
Example: George goes to his local home improvement center to rent a gas-powered high pressure washer so he can clean his patio. Hank, who is at the counter, tells George he can’t rent out the unit because it’s been sparking.
George insists on renting it anyway, saying he’ll be careful. Hank rents it to him. While George is using the unit, it starts a fire and George suffers burn injuries.
Although George voluntarily assumed the risk of injury, the home center still owes customers a duty to use reasonable care not to injure them. So neither party is blameless. A jury will have to decide how to apportion responsibility for George’s injury.
Assumption of the risk does not bar recovery in cases in which the defendant violated the law or unreasonably increased the risks to the plaintiff over and above those inherent in the activity.
Example: Bob is pitching at a friendly baseball game at the local park. The game is tied in the bottom of the 9th with two outs when Carl, a power hitter, comes to the plate. Bob throws a fastball at Carl’s head to get him out of the game.
While accidentally getting hit by a pitch is an inherent risk of playing baseball, people who play a friendly game do not expect the pitcher to intentionally throw a fastball at their head. Carl has not assumed the risk of an intentional injury.
If Carl can prove that Bob injured him intentionally —or even that Bob was reckless or grossly negligent – Bob should be liable for Carl’s injuries.
Sometimes a person or company providing a risky service or product will ask a participant to sign a written contract. Under such an “assumption of the risk” agreement, the plaintiff expressly agrees to assume the risk of injury.
These contracts – often called a “waiver of liability and assumption of the risk agreement” — are enforceable in California to the extent they require someone to assume the risk of ordinary negligence.
But a defendant cannot legally require someone to waive the right to sue for gross negligence, recklessness or intentional torts. Nor can the defendant avoid liability if the defendant has broken the law.
Example: Julie joins a gym that requires she sign a written membership agreement. The agreement has a clause saying the member assumes the risk of injury, even if it results from the negligence of the gym or its employees.
One day while Julie is doing seated cable rows, the cable breaks. Julie suffers a back injury. The gym says that Julie assumed the risk of injury.
But Julie’s California injury lawyer investigates and discovers that no one has oiled the cable as recommended by the manufacturer. A jury will have to decide whether the gym’s failure to do so amounted to ordinary or gross negligence.
For more information, please see our article on Liability Waivers in California.
Potential defendants will often cite assumption of the risk as a reason to deny liability when someone is injured in California.
But just because an activity was risky or you signed a contract it does not mean you have no legal remedy.
Our California personal injury and accident attorneys understand the complex court decisions governing California’s assumption of the risk doctrine.
We know that it is possible to recover sometimes even when a case seems unwinnable.
Injured in California? Call us for help…
If you or someone you know was injured in California and you are worried about assumption of the risk, we invite you to contact us for a free consultation.
Call us or complete the form on this page to discuss your case with a lawyer.
- See, e.g., California Civil Jury Instructions (CACI) 408 on Primary Assumption of Risk.
- California Civil Code § 1714.
- See Freeman v. Hale (1994) 30 Cal.App.4th 1388. (“[C]onduct is totally outside the range of ordinary activity involved in the sport (and thus any risks resulting from that conduct are not inherent to the sport) if the prohibition of that conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport.”).
- See e.g., Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252; City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747.