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

3. Presented by Marker Lovell

4. 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)

5. Secondary Assumption of Risk Comparative Fault/Comparative Negligence

6. Types of Recreational Marine Activities To Which it Can Apply

7. 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.”

8. WATERSKIING

9. WAKEBOARDING

10. PWC Riding

11. SPORTFISHING

12. SAILBOAT RACING

13. BOATING

14. Expansion of Doctrine to Other Activities Beniati v. Black Rock City, LLC, 175 Cal. App. 4th 650 (2009) (Burning Man)

15. CO-PARTICIPANTS Liable only for Intentional / Reckless Conduct. Not Ordinary Negligence

16. COMMERCIAL OPERATORS Duty – Not to Increase Inherent Risks of The Activity

17. Where could it be applied?

18. FISHING CHARTER

19. RENTAL FACILITY

20. HOUSEBOAT RENTAL

21. MARINA

22. COMMERCIAL OPERATORS (continued) Equipment Malfunction/ Defective Equipment Distinguished

23. Procedural Issues Summary Judgment Expert Testimony –Used to determine nature of activity –No need for an expert on topics of common knowledge

24. Statutory Violations Violation California Harbors & Navigation Code

25. Jurisdictional Issues No Primary Assumption of Risk in Maritime Law –California Cases (Navigable Waters) –Federal Cases