Primary Assumption of the Risk? Ring the Alarm!

A recent case, Harry v. Ring the Alarm, LLC 2019 Cal App Lexis 383 deals with an issue I’ve discussed numerous times before, primary assumption of the risk.

Harry v. Ring the Alarm, LLC 2019 Cal App Lexis 383 involved a piece of property in Beverly Hills that was designed by a noted architect. The property is regularly rented out for private events and used in movies. In addition to a house and other structures, the property has a concrete and glass structure set into the side of a hill. The structure is a viewing platform that affords views out over the hillside to the city. Of note, one must take cantilevered stairs up to the platform and there are no railings on either the stairs or the platform itself despite a 15+ foot drop.

During events, Harry was hired to show people around the property and, primarily, to ensure that damage was not done to the property. On November 6, 2014, Ring the Alarm was throwing a record label launch party at the premises. At approximately 11:00 p.m., Harry was asked to do a final tour. After climbing the platform, Mr. Harry noticed a long line of people behind him ascending the stairs as well as a large number of persons on the platform. He became concerned by the number of people on the platform. He attempted to walk back to the path to the stairs to lead people off the platform when he unintentionally stepped off the platform and fell, sustaining several spinal fractures.

At trial, Harry presented expert testimony that the platform constituted a dangerous condition of the property as it had no railing despite a 15-16 foot drop at the tip. Plaintiff’s expert testified that Harry could not reasonably have expected to act as a safety measure as “you can’t use human beings as guardrails.” It was noted that there were no safety devices present to prevent persons from falling from the platform.

The first two questions on the special verdict form reflected the primary assumption of risk defense. The first question asked: “Did plaintiff Edward Harry’s fall arise from a risk inherent in his occupation as a site representative at defendant James Goldstein’s property?” The jury answered “Yes.” Because that answer was yes, the jury was instructed to proceed to the second question: “Did defendant James Goldstein unreasonably increase the risks to plaintiff Edward Harry over and above those inherent in plaintiff Edward Harry’s occupation as a site representative at the subject platform on defendant James Goldstein’s property?” The jury answered “No.” Given this answer, the jury was instructed to answer no further questions and to sign and return the verdict.

The court recorded the jury’s verdict and entered judgment in Goldstein’s favor. Harry timely appealed.

Harry v. Ring the Alarm, LLC 2019 Cal. App. LEXIS 383, at 14

On appeal, the landowner continued to argue that primary assumption of the risk applied because Harry’s job included warning members of the tours he was leading that the property was dangerous and that there were no guardrails. Landowner further argued that Harry was injured by the “very thing he was hired to prevent.”

The Court disagreed with this line of reasoning, noting that the landowner’s requirement that renters use persons such as Harry during events was to “protect his unique residence and ensure it was not damaged during events” NOT to protect against the fall hazard posed by the platform.

The Court of Appeals noted that landowner was trying to employ the “firefighter’s rule” – a rule wherein, if the risk is inherent in the plaintiff’s occupation, and the plaintiff is injured by the hazard he was hired to confront, there is no recourse. The Court of Appeal found that rule inapplicable to the case at hand. The Court further noted there was no public policy reason for extending that rule to employees such as Harry.

The Court ultimately found the firefighter’s rule to be inapplicable and that it was prejudicial error to have given the jury that instruction (and questions on the verdict form), and reversed the judgment and remanded the case for a new trial.

This is one of the rare cases where the Courts have not sought to extend the reach of the primary assumption of the risk doctrine.

By Heiting & Irwin | Posted on May 3, 2019