Assumption of the risk is a legal doctrine that shifts liability for an accident or injury to one who voluntarily chooses to engage in sports or other inherently risky activities. In California, if you “assumed the risk”, you may be barred from recovering in a personal injury lawsuit unless:
- The defendant was grossly negligent or reckless or intentionally injured you, 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 you have 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 will discuss:
- 1. What is “assumption of the risk”?
- 2. When does the doctrine not apply?
- 3. What if I signed a liability waiver?
- 4. How can a California personal injury attorney help?
1. What is “assumption of the risk”?
In general, people in California have a duty to use reasonable care to avoid injury to others.2
Though 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 you.
California’s “assumption of the risk” law applies to certain dangerous sports and activities.
1.1. “Primary” assumption of the risk
In Knight, the court held that a defendant is not liable when you get injured due to a risk or danger that is inherent in an activity, such as a sport, in which you choose 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
1.2. “Secondary” assumption of the risk
In some situations, “assumption of the risk” does not completely bar your recovery. Rather, it subjects you 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 you nevertheless assume 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 your 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.
2. When does the doctrine not apply?
Assumption of the risk does not bar recovery in cases in which the defendant violated the law or unreasonably increased the risks to you 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.
3. What if I signed a liability waiver?
Sometimes a person or company providing a risky service or product will ask you to sign a written contract. Under such an “assumption of the risk” agreement, you expressly agree 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 you to assume the risk of ordinary negligence.
Though a defendant cannot legally require you 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.
4. How can a California personal injury attorney help?
Potential defendants will often cite assumption of the risk as a reason to deny liability when you are injured in California.
Though 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.
Legal references:
- See California Civil Jury Instructions (CACI) 470 and 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.