But can this conduct result in legal liability even if the resulting injuries were caused by carelessness? Most of the time, the answer is no. Through the doctrine of "primary assumption of risk," California will not impose liability when an injury results from a risk that is inherent in a sport or an active recreational activity.
Under this doctrine, the owner of a recreational facility normally will not be liable for conditions giving rise to risks normally present in a sport conducted there, and a sports participant will not be liable for injuring another participant unless his or her conduct exceeds simple negligence and "is so reckless as to be totally outside the range of ordinary activity found in the sport." Knight v. Jewett, 3 Cal. 4th 296 (1992).
The rationale for the primary assumption of risk doctrine in the sports context is that it promotes spirited participation, while at the same time promoting safe practices that do not fundamentally alter the nature of the sport. Freeman v. Hale, 30 Cal. App. 4th 1388 (1994).
Over time, courts have applied this doctrine to many different sports, each time examining the nature of the activity and the parties' relationship to it in order to determine whether the defendant had a duty to protect the plaintiff from the particular risk that caused the injury or whether that risk was inherent in the sport. See, e.g., Cheong v. Antablin, 16 Cal. 4th 1063 (1997) (downhill skiing); Ford v. Gouin, 3 Cal. 4th 339 (1992) (water-skiing); Knight v. Jewett, 3 Cal. 4th 296 (1992) (touch football); Kane v. National Ski Patrol Sys. Inc., 88 Cal. App. 4th 204 (2001) (ski patrol instruction); Calhoon v. Lewis, 81 Cal. App. 4th 108 (2000) (skateboarding); Bjork v. Mason, 77 Cal. App. 4th 544 (2000) (inner tubing); Mosca v. Lichtenwalter, 58 Cal. App. 4th 551 (1997) (sport fishing); Dilger v. Moyles, 54 Cal. App. 4th 1452 (1997) (golf); Regents of the Univ. of Cal. v. Superior Court, 41 Cal. App. 3d 1040 (1996) (rock climbing); Ferrari v. Grand Canyon Dories, 32 Cal. App. 4th 248 (1995) (river rafting); Bush v. Parents Without Partners, 17 Cal. App. 4th 322 (1993) (recreational dancing).
Three recent decisions explore additional nuances of the primary assumption of risk doctrine, deepening its analytical underpinnings and applying it to new circumstances. Shannon v. Rhodes, 92 Cal. App. 4th 792 (2001); Mastro v. Petrick, 93 Cal. App. 4th 83 (2001); Solis v. Kirkwood Resort Co., 94 Cal. App. 4th 354 (2001). These cases answer interesting questions regarding whether an activity is a "sport," whether participation in the same sport is required for the doctrine to apply, and whether changed conditions at a sporting venue can increase the inherent risk to such a degree that a duty of care is created.
♦ What constitutes a sport? In Shannon, a minor passenger sued the owner of a boat for injuries that occurred when she fell from the vessel, contending that the owner was liable because he failed to ensure that his passengers were properly seated before accelerating. The boat owner countered with the primary assumption of risk doctrine, contending that falling overboard is a risk inherent in the "sport" of boating and that the plaintiff assumed the risk by agreeing to the ride.
The issue before the court, therefore, was whether passively riding in a boat is a "sport" and thus an activity giving rise to the primary assumption of risk defense in the first place. To be a sport or recreational activity, the court concluded that the activity must be done for enjoyment or thrill; must require physical exertion as well as elements of skill; and must involve a challenge containing a potential of injury.
The court concluded that riding in a boat around a lake simply is too "benign" an activity to amount to a sport. Moreover, the court reasoned that the passengers were passive, rather than exerting themselves or using a special skill or physical prowess.
Finally, the court noted that there is nothing competitive or physically challenging about riding as a passenger. Together, these considerations took the passive boatriding out of the category of sport and prevented the defendant from raising the assumption of risk defense.
On the other hand, the court acknowledged that other forms of boating might well constitute sports under this definition. Unlike the passive passenger in Shannon, for example, a crewmember on a sailboat actively participates in sailing. Similarly, a sport fisherman actively fishes and may not have recourse if he or she is injured by the hook of another fisherman. A river rafter likewise physically participates in negotiating a river.
Under the Shannon analysis, therefore, the equipment employed in an activity is not necessarily determinative of whether that activity is also a sport. As a result, each activity must be examined separately to determine whether it is one that is sporting in nature.
♦ Must the participants be engaged in the same sporting activity? In the second recent case, Mastro, the court was called on to determine whether a snowboarder can use the primary assumption of risk doctrine to defeat the claims of the skier that he was injured on a run designated for both activities. The skier contended that because he and the snowboarder were not co-participants in the same sport, the doctrine of primary assumption of the risk did not apply. The court, however, disagreed.
The Mastro court began by declining to traverse the "slippery slope" of determining whether snowboarding and skiing are the same sport, by holding that co-participation in the same sport is not a prerequisite for the assumption of risk defense. Instead, the court concluded that the more pertinent inquiry examined the parties' relationship to the activity that caused the injury.
The nature of snowboarding, for example, is descending a snow-covered mountain. The relationship of a skier to that activity is that he or she descends the same snow-covered mountain, only on skis instead of a board. If, as in Mastro, snowboarders are pursuing their sport on a slope designated for that, a skier who elects to engage in skiing in that same venue assumes the risk of injury by careless snowboarders.
The Mastro case is interesting in that it addresses the intersection between recreational activities. Certainly as the world becomes more crowded, the venues for sporting activities become more limited, increasing the chances for sporting activities to overlap. Mastro is an initial foray into the myriad crossover sorting activities cases ahead.
♦ When do changed conditions give rise to a duty of care? In the most recent of the cases, Solis, the court examined the relationship between conditions at a sporting venue and risk normally inherent in the sport conducted there.
In Solis, the defendant resort added moguls to one of its slopes to accommodate a ski race, and the plaintiff, a self-proclaimed expert skier, injured himself after he ventured into the area and fell. The resort argued that the plaintiff assumed a risk inherent in skiing — falling down — and introduced the plaintiff's signed acknowledgment that injury and death are known risks of skiing.
The court agreed that the assumption of risk doctrine prevents a plaintiff from recovering when his or her injuries result from a hazard normally present on ordinary ski runs. Nevertheless, the court also concluded that a resort's modification of the natural terrain can increase the risks of skiing to such an extent that a duty to warn of the added risks is created.
That meant that it was for a jury to decide whether the race modifications created an exceptional risk — and whether the plaintiff knowingly entered the ski-race modified area nonetheless.
These cases demonstrate that California's courts continue to be called on to apply the primary assumption of risk doctrine to an ever-expanding array of sporting activities.
In doing so, however, they continue to recognize the guiding principle from Knight v. Jewitt: that of encouraging vigorous participation while protecting the integral nature of each sport. At the same time, they continue to encourage safe conduct by setting limits on the primary assumption of risk doctrine where the unique circumstances suggest it is appropriate to do so.