Does the assumption of risk doctrine preclude a tow truck operator from liability when a motorist's conduct enhances the hazards to the operator?

1 This doctrine is sometimes called "primary assumption of risk doctrine" to distinguish it from so-called "secondary assumption of risk doctrine," which is now merged into the principles governing comparative fault. (See Knight v. Jewett, supra, 3 Cal.4th at p. 315, 11 Cal.Rptr.2d 2, 834 P.2d 696.)

2 In this respect, the facts in the present case differ from those in Holland. In Holland, there was evidence that the stranded motorists were on or very near a freeway traffic lane, and that a passing vehicle hit the tow truck operator because he had approached the motorists to move them to a safer location. (Holland v. Crumb, supra, 26 Cal.App.4th at pp. 1848-1849, 32 Cal.Rptr.2d 366.) We do not address whether the assumption of risk doctrine precludes liability when the motorist's conduct at the site of the vehicle breakdown enhances the hazards to the tow truck operator.

3 Although the tow truck driver in Bryant had a contractual obligation to the drunk driver to remove her car from the freeway (Bryant v. Glastetter, supra, 32 Cal.App.4th at p. 784, 38 Cal.Rptr.2d 291), the court did not directly analyze the case in terms of assumption of risk doctrine (id. at pp. 783-784, 38 Cal.Rptr.2d 291). However, the court noted that it had reached the same result as the court in Holland, albeit by another route. (32 Cal.App.4th at p. 784, 38 Cal.Rptr.2d 291.)