Primary Assumption of Risk - its origins in California

Over the years, I have done quite a bit of work involving the doctrine of Primary Assumption of Risk (sometimes referred to as implied assumption of risk), mostly in the recreational sporting context. What I want to do in this series of articles is provide an overview of the law and point you to cases where the California courts have applied the Primary Assumption of Risk doctrine.

In California, the modern law of Primary Assumption of Risk had its Genesis in the landmark case of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804. In that case, the California Supreme court abolished the doctrine of contributory negligence, in favor of one of comparative negligence. Under the contributory negligence doctrine, a plaintiff could not recovery anything if the plaintiff's own negligence contributed to her injuries, even if that contribution was less than one percent. Under the new comparative negligence doctrine, if a plaintiff's negligence contributed to her injuries, she could still recover, but only to the extent that her injuries were not the result of her own negligence. So, if the plaintiff were 75% at fault for the accident, she could only recover 25% of her damages from the defendants.

What was left somewhat unclear by the Li v. Yellow Cab decision was whether there were situations where the plaintiff could be held to have impliedly assumed some risks of injury, stopping her from recovering anything, even if there was negligence on the part of the defendants. The appellate courts kicked this around for a number of years, and it was generally agreed that there was something called implied assumption of risk that prevented a plaintiff from recovering any damages in certain situations, whether or not the plaintiff was negligent. The rationales used by the courts to describe this doctrine and the exact parameters varied.