Does primary assumption of risk apply to recreational activities such as tubing and water skiing?

In Knight v. Jewett, supra, plaintiff engaged in an informal game of touch football and was injured by another player whom she had admonished " 'not to play so rough or I was going to have to stop playing.' " (3 Cal.4th at p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) The court held that plaintiff's claim was barred by primary assumption of risk. Its analysis turned on a consideration of various sporting activities that involve inherent risks and where such risk adds to the expected excitement of the participants. "In reaching the conclusion that a coparticipant's duty of care should be limited ..., the cases have explained that, in the heat of an active sporting event like baseball or football, a participant's normal energetic conduct often includes accidentally careless behavior. The courts have concluded that vigorous participation in such sporting events likely would be chilled if legal liability were to be imposed on a participant on the basis of his or her ordinary careless conduct. The cases have recognized that, in such a sport, even when a participant's conduct violates a rule of the game and may subject the violator to internal sanctions prescribed by the sport itself, imposition of legal liability for such conduct might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule." (Id. at pp. 318-319, 11 Cal.Rptr.2d 2, 834 P.2d 696, italics in original.)

Knight v. Jewett applies primary assumption of risk to vigorous, competitive sports and recreational activities engaged in by participants who wish to achieve maximum excitement and exhilaration without any regulation of their own conduct or the conduct of others. It is revealing that the court noted in Knight v. Jewett that "No rules were explicitly discussed before [the touch football] game." (3 Cal.4th at p. 300, 11 Cal.Rptr.2d 2, 834 P.2d 696.) That indicates that primary assumption of risk may not necessarily apply to a casual game of touch football played where there is an explicit agreement at the outset that there will be no blocking or tackling, and limiting physical contact to only touching the ball carrier. Any player failing to play according to that understanding should be viewed as violating his duty of care to other players. In other words, the court recognizes that participants may of their own volition limit, reduce, or avoid inherent risks of any sport by mutually prescribing in advance the manner in which the game is generally played.

The majority applies primary assumption of risk in the present matter because it sees no difference between tubing and water-skiing, drawing a parallel here with Ford v. Gouin, supra, 3 Cal.4th 339, 11 Cal.Rptr.2d 30, 834 P.2d 724. In Ford v. Gouin, the plaintiff water-skied facing backwards and barefoot in a narrow channel. The plaintiff was a very experienced water-skier, selected the water-skiing site, wore protective equipment, and was clearly aware of the hazards of water-skiing. More importantly, there is no indication in the underlying summary judgment proceeding that there was any understanding between the plaintiff water-skier and the driver of the ski boat that the driver would do anything to limit the inherent risks of water-skiing. In other words, there were no disputed material facts and the matter was properly disposed of as primary assumption of risk as a matter of law.

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Ford v. Gouin does not support the proposition that primary assumption of risk is automatically applied to individuals who participate in recreational activity involving an inherent risk, where they agree to limit or reduce the possibility of injury by agreeing to participate according to certain restrictions.