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Primary Assumption of the Risk Not Always a Bar to Recovery

One interesting, and ever-evolving, area of the law is that which surrounds the primary assumption of risk doctrine.  I’ve written on this topic several times before, you can read the articles at the links below:

A quick recap:

Since the landmark case, Knight v. Jewett (1992) 3 Cal 4th, 296, it has been held in California that the primary assumption of risk doctrine applies to those whom participate in sports. The Knight case involved a group of friends playing touch football during half time of the 1987 Super Bowl. While jumping up to intercept a pass, the defendant collided with the plaintiff, knocking her over and landing on her hand, injuring her finger. Applying the primary assumption of the risk doctrine, the Court Supreme Court held that a participant in a sporting activity cannot hold a co-participant liable for injuries they cause. This is because the person engaging in a sporting activity “assumes” the likelihood of risk at the hands of the co-participants.

The Knight Court also held that, even when a co-participant violates a rule of the game and may be subject to internal sanctions prescribed by the sport itself, no legal liability will attach. The Court reasoned that to impose legal liability would, in effect, discourage vigorous participation in such sporting events. The Court tempered this finding by stating that a co-participant does have a limited duty of care to refrain from intentionally injuring another participant or from engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

A new case, Mayall v. USA Water Polo, Inc. (2018) 2018 U.S. App. LEXIS 33359 was decided around the holding in Knight(supra).  Citing Knight, the Court in Mayall reiterated:

“Under California’s ‘primary assumption of risk’ doctrine, a person or entity does not owe a duty of care under § 1714(a) where “conditions or conduct that otherwise might be viewed as dangerous . . . are an integral part of the sport itself.”

In Mayall, the 15 year-old plaintiff was participating as goalie in a three-day water polo tournament.  She was hit hard in the face by a shot which led to a concussion.  The game continued as the plaintiff was taken to the side and spoke with her coach.  The plaintiff was ultimately returned to the game and played for the remainder.  She continued to play that day and received more shots to the head, exacerbating her initial injury.  Two days later she was taken to a doctor and diagnosed with post-concussion syndrome – a condition characterized by excessive sleeping, chronic headaches, and limited physical stamina.  She was unable to attend school due to this condition.

The plaintiff brought this action against USA Water Polo, Inc.  USA Water Polo, Inc. argued it was not liable for the injuries the plaintiff sustained as head injuries and concussions are a regular risk of the sport of water polo.  Based on this argument, the US District Court granted USA Water Polo’s motion to dismiss.

On appeal, the dismissal was reversed.  The Appellate Court found that the primary assumption of the risk did not warrant dismissal of the plaintiff’s case.  While the first shot to the head and the concussion that resulted therefrom were anticipated injuries while participating in the sport, the subsequent shots to the head were not.

USA Water Polo, Inc. had very specific procedures in place for its coaches to identify and deal with players who had suffered concussions.  The coach in this case received none of this training and did not follow USA Water Polo’s procedures.  Had they done so, the plaintiff would not have returned to play after the initial concussion and would not have sustained subsequent injuries.

The Court held that, in light of the policies and procedures that were in place by USA Water Polo, and given that they were not followed, the plaintiff had pled sufficient facts for the case to go forward on the theories of negligence, voluntary undertaking, and gross negligence.

Given the spate of other recent cases where the primary assumption of the risk doctrine has been extended to cover activities that many would not consider to be a “sport,” it is refreshing to see the Court take the extra time to look at the specifics in this case and determine that the injuries fell outside those which are regularly anticipated by the sport.

If you, or a loved one, have been injured while engaging in sporting activity, it is important to speak with an attorney to determine if the primary assumption of the risk doctrine acts as a bar to recovery.  Call Heiting & Irwin today at (951) 682-6400.


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