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Huffman v. City of Poway11/13/2000
g the verdict argued Huffman was barred from recovery under the primary assumption of the risk doctrine. The trial court rejected this argument because it concluded City's acts and omissions increased the risks of injury to Huffman. City argues primary assumption of the risk involves the determination of whether the defendant owed the plaintiff any duty of care (Staten v. Superior Court (1996) 45 Cal.App.4th 1628, 1632-1633) and the existence of a duty of care is a legal question that we may review de novo (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406).
In Knight v. Jewett (1992) 3 Cal.4th 296, the court addressed the assumption of risk doctrine in negligence cases in the context of California's comparative fault principles adopted in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. Knight delineated two categories of assumption of the risk cases: primary and secondary assumption of the risk. Primary assumption of the risk "embodies a legal conclusion that there is 'no duty' on the part of the defendant to protect the plaintiff from a particular risk." (Knight v. Jewett, supra, 3 Cal.4th 296, 308.) In primary assumption of the risk cases, there is no duty of care owed and the plaintiff's assumption of the risk acts as a complete bar to the plaintiff's cause of action. (Ibid.) Secondary assumption of the risk, in contrast, refers to those instances in which the defendant owes a duty of care to the plaintiff, breaches that duty, and the plaintiff knowingly encounters a risk created by the breach of the duty. (Id. at p. 310.) Secondary assumption of the risk is subsumed into the comparative fault scheme and a plaintiff's assumption of that risk does not act as a bar to the action. (Id. at p. 315.)
Knight, although addressing the assumption of the risk doctrine in the recreational sports setting, provided an analytical framework for evaluating assumption of the risk in other contexts. This analysis "depends heavily on the nature of the [activity] itself" as well as "on the defendant's role in, or relationship to, the [activity]." (Knight v. Jewett, supra, 3 Cal.4th at pp. 316-317.) Primary assumption of the risk applies only when a court, after examining the nature of the particular activity and the parties' relationship to that activity, concludes that a plaintiff engaged in the particular activity is harmed by the risks inherent in the activity. (Herle v. Estate of Marshall, supra, 45 Cal.App.4th at p. 1765.) The conclusion that a particular activity necessarily encompasses risks inherent in the nature of the activity means that the defendant has no duty to protect the plaintiff from those risks (Staten v. Superior Court, supra, 45 Cal.App.4th 1628, 1632) or to take steps to reduce those risks (Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8, 12-14).
Although a defendant may have no duty to protect the plaintiff from risks inherent in certain activities, the defendant does have a duty not to increase the inherent risks of those activities. (Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 327-330 [even though dancing involves inherent risk of falling, defendant can be liable for adding substance to floor that made it too slippery because defendant's action increased risk of falling].) For example, although an inherent risk of racing bicycles over a motocross course is the risk of falling when going over jumps, primary assumption of the risk would not bar recovery by a rider if the design of some jumps increased the risks of falling. (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 191-193; see also Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 [although risk of being struck by errant golf shots is inherent in sport, g
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