Person Injured While
Engaging
in Inherently Dangerous
Activity May Be Precluded from Recovering Damage for Negligence of
Others
12/04/05
Dear
Mr.
Duman:
Is it
true
that an injured claimant can be barred from recovering some or all
damages from
the responsible party, when it is shown that the claimant “assumed the
risk” of
undertaking an inherently dangerous activity?
Please
explain.
P.
S., Piedmont
Dear P. S.:
It is, in
fact, possible to defend a civil claim for personal injury damages
based on the
argument that the claimant was either partially or wholly responsible
for his
or her own injury, by knowingly engaging in an activity known to carry
a
heightened risk of injury. When successfully asserted, this “assumption
of
risk” argument can provide a basis to limit or completely negate the
defendant’s liability for the claimant’s injuries.
Civil liability for personal injury is largely based upon
California Civil Code, Section 1714, which provides that “Everyone is
responsible...for an injury occasioned to another by his want of
ordinary care
or skill in the management of his property . . . except so far as
the latter
has, willfully or by want of ordinary care, brought the injury on
himself”
[emphasis added].
Accordingly,
liability under CCP Section 1714 may be diminished by a showing that
the
injured person’s own conduct “willfully or by want of ordinary care,
brought
the injury on himself”. In the case of an “assumption of risk” defense,
the
claimant is shown to have voluntarily chosen to engage in an inherently
dangerous activity, and, therefore, either is deemed to have been
partially or
entirely responsible for his or her own injuries.
Some examples
of activities, which have been found to carry varying levels of
inherent risk
are: skydiving and the risk of falling to one’s death; deep sea diving
and the
risk of drowning; a person seated in a stadium, and the risk of being
struck by
a baseball; a golfer or bystander and the risk of being hit by an
errant golf
ball; and, one who is injured, while rock climbing or skiing.
An essential
component of the “assumption of risk”
defense is the extent to which the risk of the injuries was inherent to
the activity
and was a foreseeable part of the activity actually engaged in by the
claimant. This determination is made by
the courts on a case-by-case basis.
A claimant,
who is found to have engaged in a “primary assumption of risk” (which
is one,
where the level of inherent danger and foreseeability are very high),
will
likely be completely barred from any recovery; and, those parties, who
sponsored or assisted in the dangerous activity will generally be
deemed owe
little or no duty to protect the claimant from those injuries.
Conversely, a
“secondary assumption of risk” situation is one, where the risk level
and
foreseeability are relatively low, in which case a court can find that
the
defendant shares some portion of responsibility for the injuries
sustained, due
to some act of negligence or misconduct, which increased the inherent
risk to
the activity beyond its normally expected level.
Where a
“secondary assumption of risk” situation exists, some degree of
recovery from
the defendant may be allowed, albeit adjusted through application of
the legal
theory of “comparative negligence”.
Readers with
questions regarding the subject of “assumption of risk”, or civil
liability
generally, should consult directly with their own attorneys, for
specific
attention.
FD774 11/23/05
4\column\assumpt2.rsk
Readers may address their
questions to The Real Estate
Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California
94546. Mr. Duman will answer those of
general
interest in his column. He reserves the
right to edit the letter for brevity and clarity.
Each real estate problem
usually has its own distinct
circumstances, and frequently is more complicated than realized by a
layperson. Readers are also encouraged
to consult with their own lawyers to obtain guidance concerning their
problems
when they first arise.
Readers are cautioned that
these answers are not intended
to be the basis for any action or reliance by the reader.
You are welcome to
visit our web site at “www.dumanlaw.com”.
© 2005, Fred M. Duman All Rights Reserved. Please see our disclaimer.
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