California Doctrine of Primary Assumption of Risk and Its Application in Recreational Marine Cases

Presented by Marker 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 4 th 296 (1992) Ford v. Gouin –Barefoot Waterskiing 3 Cal 4 th 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