Primary and Secondary Assumption of Risk Within California Doctrine

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Assumption of risk is the legal responsibility of a party that assumes the risk of harm from another party’s negligence. The assumption of risk applies in various situations, including construction projects, sports, and recreational activities.

In the context of professional services, courts have held that professionals assume the risks associated with their services. It means they cannot sue clients for injuries caused by the client’s negligence.

In California, defendants have two types of assumptions of the risk defenses: primary and secondary assumptions of risk. Here’s what our California personal injury lawyers say about primary and secondary risk assumptions.

Background on California’s Assumption of Risk Doctrine

Knight v. Jewett, a case decided by the California Supreme Court in 1992, established the assumption of risk doctrine. The doctrine is based on the idea that if you engage in an activity and know there are risks, you should not be able to sue anyone else if those risks materialize and cause damage.

This doctrine applies when:

  • You voluntarily participate in an activity despite knowing about the risks involved;
  • The trouble is common knowledge among participants; and
  • You don’t take reasonable steps to protect yourself against the known risks.

What Is the Definition of Assumption of Risk?

Assumption of risk is a defense to negligence that relieves a defendant from liability if the plaintiff voluntarily and knowingly exposes themselves to a known risk. This defense uses cases where the plaintiff has failed to exercise reasonable care for their safety, contrasted with contributory negligence, which holds a plaintiff accountable for their injuries.

The doctrine is a legal rule that operates to bar certain types of lawsuits. It’s a common-law defense, meaning it comes from the common law (the body of law developed by judges over time) rather than from statute.

It’s also known as contributory negligence and comparative negligence. Assumption of risk is also similar to contributory negligence, but it’s not the same. So, understanding these concepts’ differences is essential because they play important roles in California’s injury law.

An example is, you’re driving your car down a busy street at night, and you know that vehicles are likely to hit each other. Therefore, when one hits yours, you can’t sue for damages unless it was clear that the other driver was acting recklessly or intentionally in causing the accident by driving too fast for conditions or some other egregious act.

Primary vs. Secondary Assumption of Risk

There are two elements of assumption of risk; primary and secondary assumption of risk form. But how do they differ?

Primary Assumption

The primary assumption of risk occurs when a plaintiff engages in an activity that involves a known and obvious risk of injury. This assumption is often compared to consent because it requires an affirmative act by the plaintiff indicating their willingness to assume the risks associated with an activity.

Under California law, the primary assumption of risk occurs when a plaintiff is aware of the risks involved in an activity but voluntarily chooses to engage in that activity anyway. A typical example of a primary assumption of risk would be someone who decides to ride a motorcycle without wearing a helmet or other protective gear because they know it’s dangerous and want to experience that danger firsthand.

Another example is if a person skydives out of an airplane for fun and lands flat on their head, they cannot later sue for injuries because they voluntarily took part in an activity where falling from high altitudes was likely (and perhaps even intended).

Secondary Assumption

A secondary assumption of risk occurs when a plaintiff knows risks are involved in an activity but doesn’t realize how significant those risks are until after they’ve already engaged in that activity.

Or sometimes, a plaintiff knows about an inherent danger in an activity but still participates anyway due to other reasons (such as financial gain). Because they’re unaware of how risky a move is, secondary assumption allows defendants to argue that plaintiffs should have known better than to engage in such activities.

With secondary assumption, the injured person may be able to recover a portion of their damages in proportion to their negligence.

For example, you decide to rent a particular vehicle from the airport rental agency, but the agent cautioned you that the brakes were not up to par.

You insisted on renting the car, and the brakes failed, injuring you. You voluntarily accepted the risk of injury from a vehicle with a known flaw, but the rental agency was responsible for hiring cars with known safety hazards.

Well, both parties were irresponsible. As a result, your proportion of negligence will be reduced, but your monetary damages will not be reduced.

What If the Plaintiff Signed a Liability Waiver?

A person or organization offering a potentially dangerous service or product may ask a participant to sign a written contract. The plaintiff expressly agrees to incur the risk of injury under such assumption of the risk agreement.

In California, these contracts – also known as “waiver of liability and assumption of risk agreements” – are enforceable to the extent that they require someone to take the risk of ordinary negligence.

However, a defendant cannot lawfully compel a plaintiff to forgo their right to sue for gross negligence, recklessness, or deliberate torts. If the defendant has broken the law, the defendant cannot evade accountability.

Get Help from a Personal Injury Attorney

A personal injury lawyer can help you file a lawsuit against the party responsible for causing your accident. They can also advise you on whether to settle out of court or go through a trial. So, don’t feel stuck when in a primary or secondary assumption of risk; get in touch with our personal injury consultants at Attorney Jeff anytime!

Risk Assumption FAQs

What is the difference between contributory negligence and risk assumption?

Contributory negligence is a legal defense that relies on the plaintiff’s failure to exercise reasonable caution. Assumption of risk is a defense founded on the notion that the plaintiff agreed to the defendant’s actions, therefore nullifying the plaintiff’s negligence claim.

Is risk assumption a full defense?

Many states’ comparative and contributory negligence rules have limited or abolished other types of risk assumptions. However, express risk assumption is still widely accepted as a complete defense in personal injury and different cases.

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