When you choose to take part in a risky activity in California, you “assume the risk” of any injuries, even if they are someone else’s fault. Therefore, you are barred from bringing negligence lawsuits against the at-fault parties.
Common situations where defendants assert the “assumption of the risk” defense include:
- Lawsuits for sports injuries at school,
- Gym or fitness center injuries, and
- Activities for which you have signed a “liability waiver.”
However, if the defendant owed you a duty to protect you, you still may be able to sue and recover damages – even if you “assumed the risk.”
To help you better understand “assumption of the risk” in California personal injury lawsuits, our Los Angeles personal injury lawyers will discuss:
- How does “assumption of the risk” work?
- When does it not apply?
- What if I signed a liability waiver?
- How can an attorney help?
- Additional Reading
How does “assumption of the risk” work?
In general, people in California have a duty to use reasonable care to avoid injury to others.1 However, there are exceptions to this rule like California’s “assumption of the risk” doctrine.2
In the 1992 case Knight v. Jewett, the California Supreme Court established 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 you.
California’s “assumption of the risk” law applies to certain dangerous sports and activities.
“Primary” Assumption of the Risk
Under the “primary assumption of the risk” doctrine, a defendant is not liable when you get injured due to a risk inherent in an activity – such as a sport – in which you choose to participate.
Example: People who play soccer at their local park assume the risk of getting hit accidentally by a kick. It is a risk inherent in the game of soccer.3
“Secondary” Assumption of the Risk
Under the “secondary assumption of the risk” doctrine, you can still sue the defendant for negligence even if you knowingly engaged in a risky activity. This occurs when the defendant:
- has a duty to protect you from a particular risk and
- breaches that duty.
In such cases, California’s “comparative fault” law kicks in.4 If you sue the defendant and win, your payout will be reduced in proportion to your degree of fault.
Example: George goes to rent a gas-powered high pressure washer. Hank, who is at the counter, tells George he cannot rent out the unit because it has been sparking. George insists, and Hank agrees.
While George is using the unit, the sparks burn him, and he sustains $10,000 in medical expenses. Although George assumed the risk of injury, Hank still owed him a duty to use reasonable care not to injure them. At trial the jury finds George 50% at fault and therefore awards him $5,000 (50% of his total damages).
When does it not apply?
Assumption of the risk does not bar recovery in cases where the defendant:
- violated the law or
- unreasonably increased the risks to you over and above those inherent in the activity.
Example: During a friendly baseball game at the local park, Bob throws a fastball at Carl’s head to get him out of the game. While accidentally getting hit is a risk of baseball, people who play a friendly game do not expect a fastball at their head. 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.
What if I signed a liability waiver?
Liability waivers – also called a “waiver of liability and assumption of the risk agreement” – are enforceable in California. However, liability waivers prevent you from suing the at-fault party only for ordinary negligence.
Therefore, you may still be able to sue the at-fault party for either:
- gross negligence,
- recklessness or
- intentional torts.
How can an attorney help?
Potential defendants often cite “assumption of the risk” as a reason to deny liability when you are injured in California. 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 it is possible to recover sometimes, even when a case seems unwinnable.
Additional Reading
For more in-depth information, refer to the following scholarly articles:
- Assumption of Risk and Abnormally Dangerous Activities: A Proposal – Montana Law Review.
- Assumption of Risk in Products Liability Cases – Louisiana Law Review.
- Implied Assumption of the Risk: Does It Survive Comparative Fault – Illinois University Law Journal.
- From Baseball Parks to the Public Arena: Assumption of the Risk in Tort Law and Constitutional Libel Law – Temple Law Review.
- Assumption of Risk and the Landowner – Louisiana Law Review.
Legal References:
- See California Civil Jury Instructions (CACI) 470 and (CACI) 472 on Primary Assumption of Risk. See also Wellsfry v. Ocean Colony Partners, LLC (; Nigel B. v. Burbank Unified School Dist. (.
- 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 Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252; City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747.