Is a plaintiff entitled to recover damages from a defendant who failed to properly assess the risk?

California, United States of America


The following excerpt is from Kindrich v. Long Beach Yacht Club, 167 Cal.App.4th 1252, 84 Cal. Rptr. 3d 824 (Cal. App. 2008):

(2) So, to the extent that "`"a plaintiff unreasonably undertakes to encounter a specific known risk imposed by a defendant's negligence,"'" he or she is subject to the defense of comparative negligence but not to an absolute defense. (Knight v. Jewett (1992) 3 Cal.4th 296, 305-306 [11 Cal.Rptr.2d 2, 834 P.2d 696].) This type of comparative negligence has been referred to as "`secondary assumption of risk.'" (Id. at p. 308.) Assumption of risk that is based upon the absence of a defendant's duty of care is called "`primary assumption of risk.'" (Ibid.) "First, in `primary assumption of risk' caseswhere the defendant owes no duty to protect the plaintiff from a particular risk of harma plaintiff who has suffered such harm is not entitled to recover from the defendant, whether the plaintiff's conduct in undertaking the activity was reasonable or unreasonable. Second, in `secondary assumption of risk' casesinvolving instances in which the defendant has breached the duty of care owed to the plaintiffthe defendant is not entitled to be entirely relieved of liability for an injury proximately caused by such breach, simply because the plaintiff's conduct in encountering the risk of such an injury was reasonable rather than unreasonable." (Id. at p. 309.)

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