What is the test for primary assumption of the risk in a motor vehicle accident?

California, United States of America


The following excerpt is from Heflebower v. Beard, F074762 (Cal. App. 2019):

In the present case, the jury followed the special verdict form and made the following findings of fact in response to the first three questions: (i) defendant was participating in a sport activity at the time of the accident, (ii) plaintiff was not participating in the sport activity at that time, and (iii) plaintiff knew the sports activity was occurring at the time he was injured. Based on these three findings of fact by the jury, the trial court concluded that primary assumption of the risk was applicable. The fourth and final finding of fact on the special verdict formi.e., that defendant's conduct was not so reckless as to be outside the range of ordinary activity involved in the sport activitylogically presupposes the trial court's conclusion to apply primary assumption of the risk. (See Luna v. Vela (2008) 169 Cal.App.4th 102, 112 [once court resolves legal issue of duty, the question of whether a defendant's conduct increased risks inherent in the sport is a factual question for the jury]; accord, Fazio v. Fairbanks Ranch Country Club (2015) 233 Cal.App.4th 1053, 1061-1063.)

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