California Doctrine of Primary Assumption of Risk
and
Its Application in Recreational Marine Cases
Presented byMarker Lovell
Primary Assumption of the Risk
• Duty Question- A person has no duty to protect others from the inherent risk of an activity. A risk is inherent if can be prohibited without discouraging vigorous participation in an activity.
• Knight v. Jewett – Touch Football
• 3 Cal 4th 296 (1992)
• Ford v. Gouin– Barefoot Waterskiing
• 3 Cal 4th 339 (1992)
Secondary Assumption of Risk
• Comparative Fault/Comparative Negligence
Types of Recreational Marine Activities To Which it Can Apply
TEST FOR ACTIVITIES THAT QUALIFY
• Sporting Activities “done for enjoyment or thrill, requires physical exertion as well as elements of skill and involves the chance of personal injury.”
WATERSKIING
WAKEBOARDING
PWC Riding
SPORTFISHING
SAILBOAT RACING
BOATING
Expansion of Doctrine to Other Activities
• Beniati v. Black Rock City , LLC, 175 Cal. App. 4th 650 (2009) (Burning Man)
CO-PARTICIPANTS
Liable only for Intentional / Reckless Conduct. Not Ordinary
Negligence
COMMERCIAL OPERATORS
• Duty – Not to Increase Inherent Risks of The Activity
Where could it be applied?
FISHING CHARTER
RENTAL FACILITY
HOUSEBOAT RENTAL
MARINA
COMMERCIAL OPERATORS (continued)
Equipment Malfunction/ Defective Equipment
Distinguished
Procedural Issues
• Summary Judgment
• Expert Testimony– Used to determine nature of activity– No need for an expert on topics of common
knowledge
Statutory Violations
• Violation California Harbors & Navigation Code
Jurisdictional Issues• No Primary Assumption of Risk in
Maritime Law
– California Cases (Navigable Waters)
– Federal Cases
