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CA Assumption of Risk Doctrine Applies to Thrillseekers

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By Jonathan R. Tung, Esq. on June 06, 2016 4:15 PM

Personal injury attorneys intuitively understand that the potential payout for injured plaintiffs is inversely related to both the dangerousness of the plaintiff's personal conduct at the time of the injury and the foreseeability of his injury. In a recent California case, the Third Appellate District drew a line in the sand in favor of defendants.

It's just another reminder that those engaged in anything more dangerous than a simple job run the risk of losing certain premise liability suits against landowners in California. As you might have guessed, this has its fans as well as its detractors.

"Cruisin'" Leads to Tragedy

Two young brothers were riding around on their skateboards one day. The two of them ascended a hill on foot -- one too steep to ascend on their boards -- with the specific intent to ride down the hill for fun. As they descended the hill at speed, one brother moved to the side against traffic. His skateboard wheel caught the lip of a manhole cover-collar and stopped abruptly, launching him forward via inertia. His head impacted the pavement and he was killed. Neither brother was wearing a helmet at the time.

"Sport-Like Activity"

The family brought suit against various defendants including the city on a number of theories including premise liability. The gravamen of the theories was negligence and tortiously dangerous condition of public property under California's Government Code section 835.

Defendants moved for summary judgment under the doctrine of assumption of the risk, arguing that skateboarding fell under what is sometimes known as the "sport exemption" -- that is, the boys were involved in a "sport-like activity" and assumed the risks inherent to that sport -- and as such, the defendants owed no duty to protect persons against such specific dangers. In California, this defense has frequently been applied to thrillseeking activities. Their request was granted.

"Organized Relationship"

The appellate court agreed with the trial court. A number of factors were material in its analysis.

First, it's useful to note that the court did not address the plaintiff's allegation that the premise was tortiously dangerous because the lower court properly granted summary judgment on the issue of assumption of the risk. This probably turned the tide permanently against plaintiff's case for good.

The entire case was decided on the issue of assumption of the risk. The court applied precedential case law and found that under the facts the only "logical" reason for the boys to have ascended the hill on foot only to ride back down on it again was for the "thrill" and for "sport-like" purposes. Indeed, the whole point of skateboarding counter-culture is the thrill of injury and obstacles. The court argued that everyone knows that falling is an inherent risk of skateboarding and that defendants were not under any duty to take additional steps to reduce risks unless they were already in an "organized relationship" (read a tacit agreement) amongst one another.

The fact that the boys were not wearing helmets and rode against traffic also did not help the survivors' case. California lawyers should be aware that proper preparation of procedure may save their plaintiff's case, or at least preserve critical issues upon appeal. In this case, it appears that premise liability allegations largely fell to the wayside in light of the defendant's motion for summary judgment.

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