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Does Primary Assumption of the Risk Apply to a Mandatory Physical Education Class?

Does Primary Assumption of the Risk Apply to a Mandatory Physical Education Class?  This was the question taken up by the Second District Court of Appeal in the case of Nigel B. v. Burbank Unified School District (2023) 2023 Cal. App. LEXIS 506.

As a quick reminder, the primary assumption of the risk doctrine essentially holds that:

Although persons generally owe a duty of due care not to cause an unreasonable risk of harm to others, some activities—and, specifically, many sports—are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. The primary assumption of risk doctrine, a rule of limited duty, developed to avoid such a chilling effect. Where the doctrine applies to a recreational activity, operators, instructors and participants in the activity owe other participants only the duty not to act so as to increase the risk of injury over that inherent in the activity.

It’s a topic I’ve written about many times previously.

In the recent Nigel B case, the Court took on the issue of whether this would apply to sports that students were engaged in as a part of a mandatory physical education (PE) class.

In this case, plaintiff (Nigel B) sustained a knee injury while taking part in a mandatory eighth-grade PE class game of touch football.  The plaintiff brought suit for negligence against the Burbank Unified School District, the PE teacher, and the student who caused the plaintiff’s injuries.  The jury found in favor of the plaintiff.  The school District Appealed.

On appeal, the Burbank Unified School District argued they should be immune for liability for the plaintiff’s injuries because of the doctrine of primary assumption of the risk.  That is, the injuries sustained by the plaintiff are inherent risks to the sport of touch football and neither the school district nor the PE instructor should be held liable.

The Court of Appeal held:

  1. Because a middle school student who was injured during a mandatory physical education class was not a voluntary participant, but was compelled to attend under Ed. Code, § 48200, the primary assumption of risk doctrine did not apply to limit the duty of due care under Civ. Code, § 1714, subd. (a), and the trial court therefore did not err when it refused to instruct the jury on primary assumption of risk;
  2. A special verdict form, which advised the jury that it could not apportion fault to another student who ran into the injured student while playing touch football if it concluded that the act was intentional, was erroneous because apportionment of fault under Civ. Code, § 1431.2, construed to promote fairness in accordance with Civ. Code, § 1431.1, subd. (b), could not increase a negligent defendant’s obligation based on a more culpable party acting intentionally.

Nigel B. v. Burbank Unified School Dist., 2023 Cal. App. LEXIS 506, *1

Because the trial court did not provide the jurors with an instruction regrading comparative fault, the Court remanded the case for retrial on the apportionment of fault as between the PE teacher and the student who caused the injury to the plaintiff.

If you or a loved one have been injured at school, contact the experienced attorneys at Heiting & Irwin who have decades of experience in handling injury claims against school districts.  Call us at (951) 682-6400 for a free consultation or visit us online at

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