Primary Assumption of Risk – “Inherent Occupational Hazards”
Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053
Fazio, a professional musician, filed a lawsuit against Fairbanks claiming negligence after he fell from a stage on Fairbanks’s property before a performance. Fairbanks argued in its motion for summary judgment, among other things, that as a musician who regularly performed on stage Fazio assumed the risk of falling. On appeal, Fazio claims the trial court erred by granting Fairbanks’s motion because a triable issue of fact exists as to whether Fairbanks constructed the stage in a way that unreasonably increased the risk of falling.
“In Knight v. Jewett (1992) 3 Cal.4th 296 (Knight), the Supreme Court considered the proper application of the assumption of risk doctrine in light of its adoption of comparative fault principles in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. The court “distinguished between (1) primary assumption of risk—‘those instances in which the assumption of risk doctrine embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk’—and (2) secondary assumption of risk—‘those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the defendant’s breach of that duty.’ [Citation.] Primary assumption of risk, when applicable, completely bars the plaintiff’s recovery. [Citation.] The doctrine of secondary assumption of risk, by contrast, ‘is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.’ ” (Cheong v. Antablin (1997) 16 Cal.4th 1063, 1067–1068, citing Knight, supra, at pp. 308, 314–315.) Although it addressed the assumption of the risk doctrine in the context of sports activities, Knight “provided an analytical framework for evaluating” the doctrine “in other contexts.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 994.) Primary assumption of the risk applies when the court, “after examining the nature of the particular activity and the parties’ relationship to that activity, concludes that a plaintiff engaged in the particular activity is harmed by the risks inherent in the activity.” (Id. at p. 994.) When the risks are inherent, the defendant does not have a “duty to protect the plaintiff from those risks [citation] or to take steps to reduce those risks.”
Inherent Occupational Hazards
“[T]he primary assumption of the risk doctrine is not limited to recreational activities… the doctrine has been applied “to other activities involving an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.” (Beninati v. Black Rock City, LLC (2009) 175 Cal.App.4th 650, 658; Nunez v. R’bibo (1989) 211 Cal.App.3d 559, 563 [applying assumption of the risk to gardener who fell from ladder while trimming tree].) “Primary assumption of risk cases often involve recreational activity, but the doctrine also governs claims arising from inherent occupational hazards.”]; Priebe v. Nelson (2006) 39 Cal.4th 1112, 1116 [applying doctrine to bar kennel worker’s claim against dog owner]; and Saville v. Sierra College (2005) 133 Cal.App.4th 857, 867–868 [applying doctrine to student injured while practicing takedown maneuvers in police officer training course].)
“Although defendants generally have no legal duty to eliminate (or protect a plaintiff against) risks inherent in the sport itself, it is well established that defendants generally do have a duty to use due care not to increase the risks to a participant over and above those inherent in the sport.” (Knight, 3 Cal.4th at pp. 315–316.) Likewise, when the doctrine is applied outside the sports context [Inherent Occupational Hazards], summary judgment on primary assumption of risk grounds is unavailable unless the defendant disproves the theory it increased the inherent risks, or establishes a lack of causation between its conduct and the plaintiff’s injury. (Campbell v. Derylo, at p. 830, 89; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123.)
The Court held: “We agree with Fairbanks that falling off stage is an inherent risk for all stage performers… That risk “cannot be eliminated entirely without altering the fundamental nature” of performing on stage. (Beninati v. Black Rock City, LLC, 175 Cal.App.4th at p. 658.) As a result, Fairbanks was under no duty to protect Fazio from this inherent risk.
Defendant Increasing the inherent risk involved in the activity – Question of Law or Fact?
“Court of Appeal decisions addressing the determination of whether increased risk is a legal question for the court or a factual one for the jury conflict.” The Court analyzed the numerous cases, with a special emphasis on the Supreme Court case of Shin v. Ahn (2007) 42 Cal.4th 482: “[T]he California Supreme Court addressed the analogous question of whether the trier of fact or the court, as a matter of law, determines if a defendant has breached a limited duty of care by engaging in reckless conduct outside the range of activity for which the plaintiff assumed the risk. (Id. at pp. 488–489.) Shin affirmed the denial of a motion for summary judgment by a golfer who struck another player with a stray ball. The court held the primary assumption of the risk doctrine was applicable to the sport of golf, but also concluded that (“golfers have a limited duty of care to other players, breached only if they intentionally injure them or engage in conduct that is so ‘reckless as to be totally outside the range of the ordinary activity involved in the sport.’ ”Id. at p. 497.) The court held summary judgment was properly denied on the record before it, which was “too sparse to support a finding, as a matter of law, that defendant did, or did not, act recklessly.” (Id. at p. 500.) The court then concluded the “jury will ultimately resolve [the question] based on a more complete examination of the facts.” (Ibid.)
The Fazio Court, thus, held: “In light of the Supreme Court’s decision in Shin, we conclude as the Luna court did, that resolving the question of whether Fairbanks increased the risk of falling is properly decided by the trier of fact. This question “is not a matter of further defining [Fairbanks’s] duty, which would be a question of law for the court. Rather, it requires application of the governing standard of care (the duty not to increase the [inherent risks] ) to the facts of this particular case—the traditional role of the trier of fact.” (Luna, 169 Cal.App.4th at p. 112.)
