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.

Award Omitting Pain and Suffering Damages Was Inadequate as a Matter of Law

Serious Surgery Always Causes Pain and Suffering; If a Jury Finds that Defendant's Negligence Created the Need for Surgery, Then an Award That Does Not Include Them is Inadequate

Dodson v. J. Pacific, Inc. (Aug. 28, 2007, B186416, Second District, Division Eight)
9 page opinion

The plaintiff had surgery in which a herniated disc was removed and a metallic plate inserted. At trial plaintiff argued (and presented expert testimony) that his back had been damaged when he fell while on defendant's premises and that the purpose of the surgery was to repair this damage, to the extent possible. It was uncontested that plaintiff had fallen while he was on defendant's premises and that plaintiff had damage to his back for which the surgery was an appropriate treatment. However, defendant's experts testified that the damage to plaintiff's back had been caused by a long-term process of deterioration. It had not been caused by a single trauma and, more specifically, it had not been caused by the fall on defendant's premises because of the delay between the fall and the onset of plaintiff's symptoms.

The plaintiff presented evidence of approximately $24,500 in economic damages. In a special verdict the jury found that the defendant had been negligent and that defendant's negligence had been a cause of plaintiff's injury. The jury found that plaintiff had suffered economic damages of $16,679 and non-economic damages of $0. The jury allocated the negligence 50/50 between plaintiff and defendant. Judgment was entered for $8,339.50. The trial court denied plaintiff's motion for a new trial on non-economic damages.

The Court of Appeal held that a damage award that did not include pain and suffering was inadequate as a matter of law because the special verdict showed that the jury had found that defendant's negligence was a cause of the plaintiff's need for surgery. The jury had explicitly found that the defendant's negligence had been a cause of the plaintiff's injuries and that the plaintiff had suffered economic damages caused by the fall. It was uncontested that the plaintiff had undergone the surgery described to the jury and it was clear that the damages awarded had been economic damages only.

While the extent of a plaintiff's pain and suffering are for a jury to decide, when the plaintiff has undergone a serious surgical procedure, the amount of the plaintiff's pain and suffering cannot be zero. Once the jury determined that there was a causal relationship between the defendant's negligence and the plaintiff's surgery, the plaintiff was entitled to some award of pain and suffering damages as a matter of law. The trial court had abused its discretion when it denied the plaintiff's motion for a new trial on non-economic damages.
Justice Boland wrote the opinion. Presiding Justice Cooper and Justice Rubin concurred.