CACI 471 Primary Assumption of Risk—Exception to Nonliability—Instructors, Trainers, or Coaches

New September 2003; Revised April 2004, June 2012, December 2013; Revised and Renumbered From CACI No. 409 May 2017; Revised May 2020

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This instruction sets forth a plaintiff’s response to a defendant’s assertion of the affirmative defense of primary assumption of risk. Primary assumption of risk generally absolves the defendant of a duty of care toward the plaintiff with regard to injury incurred in the course of a sporting or other recreational activity covered by the doctrine. (See Knight v. Jewett (1992) 3 Cal.4th 296, 320 [11 Cal.Rptr.2d 2, 834 P.2d 696].)

There are exceptions, however, in which there is a duty of care. Use the first option for element 2 if it is alleged that the coach or trainer intended to cause the student’s injury or engaged in conduct totally outside the range of the ordinary activity involved in teaching or coaching the sport or activity. Use the second option if it is alleged that the coach’s or trainer’s failure to use ordinary care increased the risk of injury to the plaintiff, for example, by encouraging or allowing the plaintiff to participate in the sport or activity when the plaintiff was physically unfit to participate or by allowing the plaintiff to use unsafe equipment or instruments. (See Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 845 [120 Cal.Rptr.3d 90].) If the second option is selected, also give CACI No. 400, Negligence—Essential Factual Elements.

While duty is a question of law, courts have held that whether the defendant has unreasonably increased the risk is a question of fact for the jury. (See Luna v. Vela (2008) 169 Cal.App.4th 102, 112–113 [86 Cal.Rptr.3d 588] [and cases cited therein].) There may also be disputed facts that must be resolved by a jury before it can be determined if the doctrine applies. (See Shin v. Ahn (2007) 42 Cal.4th 482, 486 [64 Cal.Rptr.3d 803, 165 P.3d 581].)

For an instruction on primary assumption of risk applicable to coparticipants, see CACI No. 470, Primary Assumption of Risk—Exception to Nonliability—Coparticipant in Sport or Other Recreational Activity. For an instruction on primary assumption of risk applicable to facilities owners and operators and to event sponsors, see CACI No. 472, Primary Assumption of Risk—Exception to Nonliability—Facilities Owners and Operators and Event Sponsors. For an instruction applicable to occupations with inherent risk, see CACI No. 473, Primary Assumption of Risk—Exception to Nonliability—Occupation with Inherent Risk.

•“In order to support a cause of action in cases in which it is alleged that a sports instructor has required a student to perform beyond the student’s capacity or without providing adequate instruction, it must be alleged and proved that the instructor acted with intent to cause a student’s injury or that the instructor acted recklessly in the sense that the instructor’s conduct was ‘totally outside the range of the ordinary activity’ involved in teaching or coaching the sport.” (Kahn v. East Side Union High School District (2003) 31 Cal.4th 990, 1011 [4 Cal.Rptr.3d 103, 75 P.3d 30], internal citation omitted.)

•“[T]he primary assumption of risk doctrine is not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.’ ” (Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156 [150 Cal.Rptr.3d 551, 290 P.3d 1158].)

•“Although the doctrine is often applied as between sports coparticipants, it defines the duty owed as between persons engaged in any activity involving inherent risks. The doctrine applies to activity ‘done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury’ … .” (Jimenez v. Roseville City School Dist. (2016) 247 Cal.App.4th 594, 601 [202 Cal.Rptr.3d 536], internal citations omitted; see also Bertsch v. Mammoth Community Water Dist. (2016) 247 Cal.App.4th 1201, 1208 [202 Cal.Rptr.3d 757] [“These factors certainly apply to skateboarding”].)

•“Here, we do not deal with the relationship between coparticipants in a sport, or with the duty that an operator may or may not owe to a spectator. Instead, we deal with the duty of a coach or trainer to a student who has entrusted himself to the former’s tutelage. There are precedents reaching back for most of this century that find an absence of duty to coparticipants and, often, to spectators, but the law is otherwise as applied to coaches and instructors. For them, the general rule is that coaches and instructors owe a duty of due care to persons in their charge. The coach or instructor is not, of course, an insurer, and a student may be held to notice that which is obvious and to ask appropriate questions. But all of the authorities that comment on the issue have recognized the existence of a duty of care.” (Tan v. Goddard (1993) 13 Cal.App.4th 1528, 1535–1536 [17 Cal.Rptr.2d 89], internal citations omitted.)

•“[D]ecisions have clarified that the risks associated with learning a sport may themselves be inherent risks of the sport, and that an instructor or coach generally does not increase the risk of harm inherent in learning the sport simply by urging the student to strive to excel or to reach a new level of competence.” (Kahn, supra, 31 Cal.4th at p. 1006.)

•“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 that 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. Furthermore, 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.” (Eriksson, supra, 191 Cal.App.4th at p. 845, internal citation omitted.)

•“That an instructor might ask a student to do more than the student can manage is an inherent risk of the activity. Absent evidence of recklessness, or other risk-increasing conduct, liability should not be imposed simply because an instructor asked the student to take action beyond what, with hindsight, is found to have been the student’s abilities. To hold otherwise would discourage instructors from requiring students to stretch, and thus to learn, and would have a generally deleterious effect on the sport as a whole.” (Honeycutt v. Meridian Sports Club, LLC (2014) 231 Cal.App.4th 251, 258 [179 Cal.Rptr.3d 473].)

•Coaches and sports instructors “owe students a duty ‘not to increase the risks inherent in the learning process undertaken by the student.’ But this does not require them to ‘fundamentally alter the nature of the sport and, in some instances, effectively preclude participation altogether … .’ Instead, ‘[b]y choosing to participate in a sport that poses the obvious possibility of injury, the student athlete must learn to accept an adverse result of the risks inherent in the sport.’ ” (Lupash v. City of Seal Beach (1999) 75 Cal.App.4th 1428, 1436–1437 [89 Cal.Rptr.2d 920], internal citations omitted.)

•“The determinant of duty, ‘inherent risk,’ is to be decided solely as a question of law and based on the general characteristics of the sport activity and the parties’ relationship to it.” (Griffin v. The Haunted Hotel, Inc. (2015) 242 Cal.App.4th 490, 501 [194 Cal.Rptr.3d 830].)

•“Admittedly, it is sometimes said that ‘[t]he existence and scope of a defendant’s duty of care in the primary assumption of risk context “is a legal question which depends on the nature of the sport or activity … and on the parties’ general relationship to the activity, and is an issue to be decided by the court, rather than the jury.” ’ This statement of the rule is correct where there is no dispute about the inherent risks, and such cases may be resolved on summary judgment. [¶] However this statement is overly broad. Although the risks inherent in many activities are not subject to reasonable dispute (e.g., being hit with a baseball during a game), the risks inherent in some activities are not commonly known. In such cases, expert testimony may be required ‘ “for purposes of weighing whether the inherent risks of the activity were increased by the defendant’s conduct.” ’ … Thus, it is not entirely accurate to say inherent risks of an activity always present purely legal questions, because sometimes the nature of an activity and its risks must be gleaned from the evidence.” (Jimenez, supra, 247 Cal.App.4th at p. 608, original italics, internal citations omitted.)

•“[Plaintiff] has repeatedly argued that primary assumption of the risk does not apply because she did not impliedly consent to having a weight dropped on her head. However, a plaintiff’s expectation does not define the limits of primary assumption of the risk. ‘Primary assumption of risk focuses on the legal question of duty. It does not depend upon a plaintiff’s implied consent to injury, nor is the plaintiff’s subjective awareness or expectation relevant. … .’ ” (Cann v. Stefanec (2013) 217 Cal.App.4th 462, 471 [158 Cal.Rptr.3d 474].)

•“Although we recognize the Court of Appeal decisions specifically addressing the point are in conflict, we believe resolving this issue is not a matter of further defining [defendant]’s duty, which would be a question of law for the court. Rather, it requires application of the governing standard of care (the duty not to increase the risks inherent in the sport) to the facts of this particular case—the traditional role of the trier of fact. (See, e.g., Vine v. Bear Valley Ski Co., supra, 118 Cal.App.4th at pp. 591–592 [whether defendant’s design of snowboard jump increased inherent risks of snowboarding is question for jury]; Solis v. Kirkwood Resort Co., supra, 94 Cal.App.4th at p. 365 [whether artificial jumps built by resort increased inherent risk of falling while skiing is question for jury]; Lowe v. California League of Prof. Baseball (1997) 56 Cal.App.4th 112, 123 [65 Cal.Rptr.2d 105] [whether distraction caused by activities of minor league baseball team’s mascot increased inherent risk of spectator being hit by a foul ball ‘is issue of fact to be resolved at trial’]; but see Huff v. Wilkins, supra, 138 Cal.App.4th at p. 745 [‘it is the trial court’s province to determine whether defendants breached their duty not to increase the inherent risk of a collision [in the sport of off-roading], and it should hold a hearing for this purpose before impaneling a jury’]; American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37 [93 Cal.Rptr.2d 683] [‘[i]t is for the court to decide … whether the defendant has increased the risks of the activity beyond the risks inherent in the sport’]; see also Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 995, fn. 23 [101 Cal.Rptr.2d 325] [indicating it is for the court to determine whether defendant’s conduct increased the risk inherent in participating in a particular sport, but that trial court may receive expert testimony on the customary practices in the sport to make that determination].) [¶] Our conclusion it is for the trier of fact to determine whether [defendant] breached his limited duty not to increase the risks inherent in the sport of volleyball finds solid support in the Supreme Court’s most recent sports injury, primary assumption of the risk decision, Shin v. Ahn, supra, 42 Cal.4th 482, a case that postdates the appellate court decisions suggesting the issue is one for the court to resolve.” (Luna, supra, 169 Cal.App.4th at pp. 112–113.)

•“The existence of a duty of care is a separate issue from the question whether (on the basis of forseeability among other factors) a particular defendant breached that duty of care, which is an essentially factual matter.” (Kockelman v. Segal (1998) 61 Cal.App.4th 491, 498 [71 Cal.Rptr.2d 552].)

•“[A duty not to increase the risk] arises only if there is an ‘ “organized relationship” ’ between the defendants and the participant in relation to the sporting activity, such as exists between … a coach or instructor and his or her students. [I]mposing such a duty in the context of these types of relationships is justified because the defendants are ‘responsible for, or in control of, the conditions under which the [participant] engaged in the sport.’ ” (Bertsch, supra, 247 Cal.App.4th at pp. 1208−1209, internal citation omitted.)