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February 2013

California Extends Assumption Of Risk Doctrine To Protect Even More Defendants Than Recent Nalwa Decision

Just after the New Year we wrote about the California Supreme Court decision Nalwa v. Cedar Fair L.P. That decision extended the primary assumption of risk doctrine, under which participants in and operators of certain activities have no duty to protect other participants from risks inherent in the activity, to protect recreational activities in addition to traditional “sports.”  Nalwa held that a plaintiff injured while riding in a “bumper car” that was bumped by other cars had no cause of action because she had assumed that risk.

Nalwa is only about a month old, but one Court of Appeal decision already has applied its rationale to affirm a defendant’s summary judgment. Gregory v. Cott (Jan. 28, 2013 B237645) 2013 Cal.App.LEXIS 56 extends the primary assumption of risk doctrine beyond sports and recreational activities to workplace injuries - “you knew the job might involve this.”

In Gregory, the plaintiff worked for an in-home care agency that provided care to clients suffering from Alzheimer’s disease. The plaintiff had provided services for Alzheimer’s patients in the past and knew they could become violent as she previously had been injured by a patient. One day when the plaintiff was washing dishes and had a knife in her hand, “the patient” made contact with the plaintiff and reached for the knife the plaintiff was holding. As a result, the plaintiff was cut on the wrist and suffered significant injuries. The plaintiff filed an action for battery, negligence, and premises liability. The defendants moved for summary judgment, which the trial court granted.

The Court of Appeal affirmed. Citing Nalwa, the court stated “the primary assumption of risk doctrine . . . [applies to] activities ‘involving an inherent risk of injury to voluntary participants . . . where the risk cannot be eliminated without altering the fundamental nature of the activity.’ ” Just as getting bumped in a bumper car is part of the “fundamental nature of the activity,” the Gregory court determined there is an inherent risk of injury when treating Alzheimer’s patients that cannot be eliminated.

Citing earlier Alzheimer’s decisions and other authority, Gregory broadly held that “primary assumption of risk applies where the defendant [is] impliedly relieved of any duty of care by the plaintiff’s acceptance of employment involving a known risk or danger.” Gregory found this broad principle particularly relevant in the circumstances of this case. “When the patient has been confined or sought care precisely because he or she can no longer care for him/herself, it seems unjust to hold the patient liable when caregivers are injured.”

While the language and authority used in Gregory primarily referenced Alzheimer’s cases, the decision may open the door for injuries suffered in other occupations to fall under the primary assumption of risk doctrine. Whether this expansion of the doctrine into other occupations comes to fruition, however, remains to be seen. Nevertheless, this decision must be viewed as a positive development for California employers and defense organizations.


Don Willenburg

Product & General Liability