Assumption of Risk Continues To Be A Reliable Liability Shield For Participants In Recreational Activities

November 6, 2017Article

California courts continue to apply the assumption of risk doctrine at the summary judgment level in decisions that preserve the rights of Californians to participate in recreational activities without the threat of adverse judgments chilling vigorous activity of participants, or the risk of instructors facing liability for challenging their students to improve at their sport.

On October 25, 2017, the California Court of Appeal, Second District issued a published decision applying the assumption of risk doctrine to recreational off-road dirt biking. Foltz v. Johnson 2017 WL 4803950 involved two former fiancés who went dirt biking together in the Mojave Desert. Plaintiff Foltz, a novice dirt bike rider, alleged in a negligence action that her then-fiancé, defendant Johnson, a skilled rider, caused her to ride in an area that was too difficult for her skill level, which she contended increased the risk beyond what is inherent in off-road dirt biking.

Foltz alleged Johnson took her in an area that lacked a trail, with steep and sandy terrain. She contended she was unable to control her bike, hit a rock going downhill at 40 miles per hour, was thrown over the handlebars, and suffered a paralyzing spinal cord injury as a result. The Court of Appeal, Second District, affirming the trial court's granting of summary judgment in the defendant's favor, however, found that "[o]ff-road riding involves the inherent risk that one will fall off or be thrown from one's bike."

The Second District also disagreed with Foltz that her limited experience in riding was part of the analysis, holding that her "inexperience and expectations are not relevant to primary assumption of risk," and that the "plaintiff's subjective expectation does not define the limits of primary assumption of the risk." The Second District pointed out that "urging an inexperienced participant in a sport to engage in a more difficult maneuver [is] not tantamount to increasing the risks associated with the sports activity."

The opinion notes that although assumption of the risk cases are "fact-intensive," they are indeed properly resolved at the summary judgment stage. The decision reinforces the principle that mere creative pleading by a plaintiff, such as inserting the word "reckless" into a complaint, is not enough to cancel out the assumption of risk defense, and that allegations must be tied to facts in order for a complaint to survive summary judgment. Foltz v. Johnson is yet another helpful appellate court decision that can be relied on to protect recreational participants from devastating judgments as a result of activity that is inherent in a wide array of active sports in the State of California, much like the recent Fourth District published decision Swigart v. Bruno (2017) 13 Cal.App.5th 529, which held that a co-participant in a horseback riding event did not increase the risk of harm and thus did not constitute recklessness or gross negligence. Like Swigart, the California courts continue to provide recreational activity participants protection from liability in the form of the assumption of risk doctrine.