Whether primary or secondary assumption of risk applies turns on whether, in light of the nature of the sporting activity in which defendant and plaintiff were engaged, defendant's conduct breached a legal duty of care to plaintiff. The test is objective; it depends on the nature of the sport or activity in question and on the parties' general relationship to the activity rather than the particular plaintiff's subjective knowledge and awareness.
Plaintiff and defendant went skiing together. One collided with the other, which resulted in plaintiff's suit in general negligence against defendant. The superior court granted defendant's motion for summary judgment finding a collision was an inherent risk of downhill skiing and the court of appeals affirmed, finding that local ordinance, Placer Code § 12.135, did not impose a duty of care upon defendant irrespective of the assumption of the risk theory. Plaintiff appealed, contending he and defendant were not co-participants in the sport and that the local ordinance imposed a higher duty of care on defendant.
Was there an assumption of risk due to the participation in skiing?
The court held that the parties were acting as co-participants as the nature of the sport of skiing involved camaraderie and socializing and that the local ordinance did not evidence an intent to modify common law assumption of the risk, which was evidenced by the language that the skier assumed the risk when they participated. The judgment of the court of appeals was affirmed.