Primary Assumption of the Risk Doctrine Applies to Noncontact Sports

A Golfer has No Duty to Protect Another Player From Ordinary Negligence

Shin v. Ahn (Aug. 30, 2007, S146114, Supreme Court)
24 p. opinion

In Shin the California Supreme Court addresses a question that it explicitly left open in its seminal primary assumption of the risk decision Knight v. Jewett (1992) 4 Cal.4th 296. Does the doctrine of primary assumption of the risk apply to noncontact sports such as golfing? The Supreme Court holds that it does.

The primary assumption of the risk doctrine states that a participant in a sport has assumed the particular risks inherent in a sport by choosing to participate. The test is not a subjective one, but an objective one. It does not matter what the plaintiff knows about the risks of the sport. The question is, what is the fundamental nature of the sport? The defendant's actions are examined in relationship to the sport to determine whether or not the defendant owes a duty to protect a plaintiff from the particular risk of harm.

A defendant who is participating in a sport with a plaintiff has no liability for ordinary negligence. The defendant is only liable for intentionally injuring the plaintiff or engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

The Shin decision, a 6-1 decision, is a strong reaffirmation of the primary assumption of the risk doctrine. It is also a solid, unequivocal holding that the doctrine applies to noncontact sports. The decision cites a number of sister state decision concerning golf injuries to demonstrate the wide acceptance of this principle.

The decision also explains the relationship between primary assumption of the risk and secondary assumption of the risk. Primary assumption of the risk determines whether or not the defendant had a duty to the plaintiff. Secondary assumption of the risk is merely an alternative phrase that can be used to describe comparative negligence. It affects the determination of the amount of damages a plaintiff is entitled to recover by allocating fault between the plaintiff and the defendant.

The Supreme Court upheld the Court of Appeal's decision that this action could not be determined upon summary judgment although it reached that conclusion through a different line of reasoning. The evidence submitted in support of the defendant's motion for summary judgment left open a triable fact of whether the defendant had acted recklessly or not. The case was remanded with directions that it should proceeded under the primary assumption of the risk doctrine.
Justice Corrigan wrote the opinion. Chief Justice George and Justices Baxter, Werdegar, Chin and Moreno concurred.

Justice Kennard dissented.
In her dissent Justice Kennard referred to the primary assumption of the risk doctrine as the "so-called 'no-duty-for-sports rule.'" She has disagreed with the doctrine ever since it was adopted in Knight and continues to do so.

Comment: If an individual has been injured badly enough, while engaging in a sport or recreational activity, to warrant consideration of a personal injury action, the first step in the analysis should be a determination of whether or not the primary assumption of the risk doctrine will apply. The doctrine, when it does apply, acts as an absolute bar to recovery and makes any further analysis unnecessary.

Residential Treatment Facility For Inmates Has No Duty to General Public

Public Policy of Encouraging Innovative Criminal Offender Release and Rehabilitation Programs Outweighs Public Interest in Safety From Violent Assault

Rice v. Center Point, Inc. (Aug. 29, 2007, A114953, First District)
11 p. opinion

Rice addresses the first element in a cause of action for negligence - duty. The general rule is that one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. There is an exception where a special relationship exists between the defendant and either the person whose conduct needs to be controlled or the foreseeable victim of the third party's conduct. In this action the plaintiffs argued that they fell within that exception when they were ordinary citizens in a public park who were attacked and stabbed by four inmates of the California Department of Corrections who were living in the the defendant's residential substance abuse treatment facility. The inmates were in the facility under the terms of a contract between the defendant and the CDC. The trial court disagreed with the plaintiff's argument and granted the defendant judgment on the pleadings on the ground that the defendant did not owe the plaintiffs a legal duty of care to control the criminal behavior of the residents of their treatment facility. The plaintiffs appealed.

The Court of Appeal held that there was no special relationship between the defendant and the plaintiffs. The duty to warn the foreseeable victims of a possible future criminal attack is imposed only where the duty is foreseeable and the intended victim is identifiable. The plaintiffs were not identifiable just because they were in a park near the treatment facility.

In addressing the question of whether a special relationship existed between the defendant and their residents that imposed upon the defendants a duty owed to the public to exercise reasonable care to control the criminal conduct of their residents, the Court of Appeal was guided by two previous cases, Baeuchene v. Synanon Foundation, Inc. (1979) 88 Cal.App.3d 342 and Cardenas v. Eggleston Youth Center (1987) 193 Cal.App.3d 331. In both those cases the court held that the public's interest in safety from violent assault was outweighed by the public policy favoring innovative criminal offender release and rehabilitation programs. Imposing a duty upon residential facilities would hinder the implementation of that public policy, therefore, both courts held that there was no such duty.

The Court of Appeal followed that reasoning and upheld the judgment on the pleadings. The plaintiffs' argument that the defendant had failed to follow its own operational policies and procedures could only demonstrate a lack of reasonable care. When there is no duty that issue is irrelevant. Reasonable care presumes the existence of a duty. With no duty, there can be no requirement of reasonable care.
Presiding Justice Pollack wrote the opinion. Justices Siggins and Justice Horner (Assigned Judge of the Alameda County Superior Court) concurred.