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Primary Assumption of the Risk – Sports Participants and Stadium Owners

A new opinion has been published in the ever-expanding case law surrounding primary assumption of the risk.  For a primer on the topic, please read my previous blog articles:

Primary Assumption of the Risk in “Sports” Cases

Primary Assumption of the Risk Strikes… Again!

When Standing Next to a Horse Becomes “Horseback Riding.”

Assumption of Risk in Sports

Primary Assumption of the Risk Not Always a Bar to Recovery

Primary Assumption of the Risk? Ring the Alarm!


The newly-published case is Summer J. v. United States Baseball Federation, 2020 Cal. App. LEXIS 124.

Summer attended a baseball game put on by the US Baseball Federation, which was held at Blair Field, located on the campus of California State University Long Beach.  During the baseball game, she was struck in the face by a line drive foul ball, causing serious injury including damage to her optic nerve.  Summer was sitting just adjacent to seats which had protective netting in front of them.

US Baseball Federation filed a demurrer to Summer’s Complaint, invoking the primary assumption of the risk doctrine.  The Superior Court agreed that primary assumption of the risk protected US Baseball from any liability and thus sustained the demurrer.  When Summer’s attorneys indicated they could amend the Complaint to allege liability, the Superior Court disagreed, sustaining US Baseball’s demurrer without leave to amend, finding the defects in the Complaint to be incurable due to the primary assumption of the risk doctrine.  Summer’s attorneys appealed this ruling.

As outlined more fully in previous articles, when the primary assumption of the risk doctrine applies, “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.” Nalwa v. Cedar Fair, L.P. (2012) 55 Cal. 4th 1148, 1154.

The Court of Appeal in Summer’s case looked beyond this broad statement though and noted, “the question of duty in the recreational context depends not only on the nature of the activity but also on the “role of the defendant whose conduct is at issue in a given case.”

“Duties with respect to the same rusk may vary according to the role played by particular defendants involved in the sport…. a stadium owner, because of his or her different relationship to the sport, may have a duty to take reasonable measures to protect spectators from carelessly thrown bats. For the stadium owner, reasonable steps may minimize the risk without altering the nature of the sport.” Kahn v. East Side Union High School Dist., (2003) 31 Cal. 4th 990, 1004 [emphasis added].

The Court also looked at Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148: “While the operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize extrinsic risks so as not to unreasonably expose participants to an increased risk of harm.”

The Summer Court then listed several cases where the operator or organizer has been held to be liable despite the primary assumption of the risk:

  • Design and use of a particular type of aluminum bat unreasonably increased the inherent risk of injury to the pitcher. Sanchez v. Hillerich & Bradsbury Co. (2002) 104 Cal. App. 4th 703
  • Dehydration risks inherent in running long-distance races did not mean the organizer of marathon race had no duty to participants to arrange provision of sufficient water and electrolyte replacement drinks. Saffro v. Elite Racing, Inc. (2002) 98 Cal. App. 4th 173
  • Inherent risk of being hit by a misguided golf shot does not prevent a finding the owner of a golf course unreasonably exposed golfers to that risk by its poor design of the course. Morgan v. Fuji Country USA, Inc. (1995) 34 Cal. App. 4th 127.

With all of the above in mind, the Court found that plaintiff in Summer could cure the defects in her Complaint.  The Court held that US Baseball had a duty not only to use due care not to increase the risks to spectators inherent in the game (of baseball) but also to take reasonable measures that would increase safety and minimize those risks without altering the nature of the game.

Summer’s attorneys argued the protective netting should be extended further down the baseline and that, plaintiff was lulled into a false sense of security given that the seats adjacent to her had netting and her seat did not.  They argued she believed she was sitting beyond the zone of danger of foul balls.

The Court ended its opinion with the following question:

Installing protective netting down the first and third-base lines at least to the dugouts would certainly increase safety and minimize risk to fans sitting in those areas.  Would it alter the nature of the game?

Ultimately, the Court said that question is one for the jury to decide.  The Appellate Court reversed the Superior Court ruling, remanded the matter, allowing Summer to amend her complaint.

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