Instructing the Jury on Primary Assumption of the Risk

(Reprinted with permission from the Consumer Attorneys of San Diego, Trial Bar News)
Jeremy K. Robinson – Chair of CaseyGerry’s Motion and Appellate Practice
We’ve all seen the summary judgment motion based on primary assumption of the risk. Invariably, the defendant will go on and on about how primary assumption of the risk is a question of law, making it uniquely suited to disposition by the court. And, of course, the plaintiff argues just as vehemently that there are issues of fact that cannot be resolved on summary judgment.
Sometimes, you have to be careful what you ask for.
Suppose you beat the motion. What then? Recently, I was faced with this issue, and it can be quite the quagmire. The judge had denied the expected summary judgment motion, finding that there was a triable issue of fact as to whether primary assumption of the risk applied to the case (mostly because the parties had vastly different versions of the key events). Which was all well and good until it came time to decide on the jury
instructions.
How do you properly instruct the jury when the judge has ruled that there is a question as to whether primary assumption of the risk even applies? After all, primary
assumption of the risk is generally a question of law. See, Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.
Naturally, the defendant pushed for CACI 408 (Primary Assumption of the Risk) and CACI 409 (Liability of Coaches and Trainers). We argued against those instructions, since they would only apply if the jury found a certain set of facts to be true (in which case, the defendant had already won anyway). And if the jury did not agree with the defendant’s version of events, then they would be using an inappropriately stringent standard to determine liability.
In the sporting context, if primary assumption of the risk does not apply, the correct standard is the duty of ordinary care not to increase the risks inherent in a sport. See, Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 756; Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1535‐1536; Hemady v. Long Beach Unified School Dist. (2006) 143 Cal.App.4th 566, 576.
This was recently made explicit in Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, a case that involved a coach putting a student a risk of serious injury or death due to the physical disabilities of a participant (in that case, the plaintiff’s horse). In Eriksson, the plaintiff alleged the defendant riding coach allowed the plaintiff’s daughter to ride her horse in a difficult competition despite the coach knowing the horse was injured and unfit for the event. During the event, the horse balked at a jump, throwing the plaintiff’s daughter and ultimately killing her. Id. at 830.
In reversing summary judgment, the Eriksson court analyzed a number of assumption of the risk cases involving coaches and trainers, and concluded that the following two rules could be distilled from those cases: (1) “To the extent a duty is alleged against a coach for “pushing” and/or “challenging” a student to improve and advance, the plaintiff must show the coach intended to cause the student’s injury or engaged in reckless conduct – that is, conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport” (Id. at 845); and (2) Additionally, “a coach has a duty of ordinary care not to increase the risk of injury to a student by encouraging or allowing the student to participate in the sport when he or she is physically unfit to participate or by allowing the student to use unsafe equipment or instruments.” Id. So even if the defendants are coaches and trainers, that does not automatically mean thestandard is intentional or reckless conduct. On the contrary, Eriksson, Hemady, Wattenbarger, and Tan all make it very clear that standard only applies when the basis for liability is the coaches’ “pushing” or “challenging” the student to improve. (See also, use notes for CACI 409, where the above analysis from Eriksson is quoted
verbatim).
This leaves the plaintiff (and the judge) with a dilemma. If the jury is given CACI 408 or 409, they will be required to find the defendant’s conduct was either intentional or reckless (as that term is defined in assumption of the risk law, not the “reckless” definition in CACI 3113) in order to find the defendant liable. If the jury is not given CACI 408 or 409 and instead given the ordinary duty of care instructions, the defendant will argue that the judge deprived it of presenting a valid defense to the jury. Which will guarantee an appeal if the plaintiff is successful. And if the court gives the jury both CACI 408 or 409 and the ordinary care instructions, the jury will be understandably confused, leading to the distinct possibility of a legally irreconcilable verdict.
Add to this the matter of primary assumption of the risk generally being a question of law, and you’ve got yourself a pickle. At least the defendant, who so vociferously argued for resolution of this issue by the court in summary judgment, is going to side with the plaintiff on this issue, right? Okay, okay, stop laughing. By this time, of course, the defense has realized its best chance is to convince the jury the plaintiff cannot meet the high standard set by CACI 408 and 409, i.e., that the defendant acted recklessly. So instead of sticking with the issue of law argument, the defendant now insists the jury be given CACI 408 and 409. And since the plaintiff urged questions of fact in its opposition, he or she is likely going to be bound to that.
In such cases, the appellate courts are split as to whether primary assumption of the risk is a question of law for the court or a question of fact for the jury. See, e.g., Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 715 [question of fact]; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [question of law]. Our Fourth District Court of Appeal, however, has fallen squarely in the question of law camp. See, Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995, footnote 23.
In Huff v. Wilkins (2006) 138 Cal.App.4th 732, 745, the Fourth District proposed an interesting solution to the problem. The court stated that “it is the trial courtʹs province to determine whether defendants breached their duty not to increase the inherent risk of a sport, and it should hold a hearing for this purpose before impaneling a jury.” Id. at 745. “The court may rely on expert evidence, and it must decide the issue whether or not the evidence conflicts.” Id. If the plaintiff does not show a breach of duty, the primary assumption of risk doctrine bars the action. Id. If the plaintiff does show a breach of duty, “the action proceeds to a jury trial under a secondary assumption of the risk theory in which causation issues are tried.” Id. 745.
In other words, the court suggests holding a mini bench trial on the issue of primary assumption of the risk, complete with expert testimony. Presumably, if the defendant prevails, the case is over, but if the plaintiff prevails, the case then goes to trial without primary assumption of the risk being presented to the jury.
It is a creative suggestion, but not without its problems. The most significant seems to be that unless the defendant totally botched the summary judgment motion – or didn’t file one – the result of the mini trial is a foregone conclusion. If the defendant was able to convince the court there was no breach of duty, summary judgment would have been granted. And if the judge already ruled that there were issues of fact precluding summary judgment, it is hard to see how he or she could find differently during the mini trial.
Of course, it also is risky for the plaintiff. Who wants to prepare a case for trial, only to have it bounced on assumption of the risk just before jury selection starts?
In any event, whether this approach still remains valid following the California Supreme Court’s decision in Shin v. Ahn (2007) 42 Cal.4th 482, 486 is unclear. See, Luna v. Vela (2008) 169 Cal.App.4th 102, 112‐113 [recognizing conflict in appellate courts and holding Shin v. Ahn, supra, requires the question of recklessness to be resolved by the jury]. Since CACI 408 and 409 still exist, obviously there are times when it is contemplated that the jury will have to decide the issue.
I would be interested in receiving feedback from anyone else who has encountered this issue. Has anyone ever done the mini trial suggested in Huff? Briefed this issue and had it resolved by a judge? Kept out CACI 408 or 409 over the defendant’s objections? In our case, the judge never decided the matter because the case settled, so I’m left needing a resolution from someone out there.
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