Primary Assumption Of Risk: Professor Neil M. Levy On Shin v. Ahn

Primary Assumption Of Risk: Professor Neil M. Levy On Shin v. Ahn

In Shin v. Ahn (42 Cal. 4th 482 [Cal. 2007]), the California Supreme Court applied the doctrine of primary assumption of risk to an action brought by a golfer hit by a ball. The court made clear that primary assumption of risk can be applied to an injury occurring to a participant in a non-contact sport. The opinion’s language and holding has implications for the use of assumption of risk doctrine in all sports cases. The court held that plaintiff can prevail despite a finding that primary assumption of risk applies by proving that defendants conduct was intentional or reckless. Professor Neil Levy, author of California Torts, analyzes the California Supreme Court's latest pronouncement on the doctrine of primary assumption of risk, including pleading tips to help plaintiffs avoid summary judgment.

On the narrowest level, the Supreme Court in Shin for the first time applied the doctrine of primary assumption of risk to a non-contact sport, golf. Although in Kahn v. East Side Union High School Dist. ([2003] 31 Cal. 4th 990, 4 Cal. Rptr. 3d 103), the assumption of risk doctrine had been applied in a suit by a swimmer against her coach, the court did not specifically classify swimming as a non-contact sport.

In this Emerging Issues Commentary, Professor Levy explains that the lessons to be learned from Shin are much broader. The defendant in Shin hit a ball that struck the plaintiff with whom he had been playing a round of golf. There was conflicting evidence as to whether the defendant was aware that the plaintiff was standing where he could be hit by an errant ball. The defendant shanked the ball and injured plaintiff. The court stated:

“We hold that the primary assumption of risk doctrine does apply to golf and that being struck by a carelessly hit ball is an inherent risk of the sport.”

If summary adjudication holds that primary assumption of risk applies but there are triable issues of facts as to whether defendant had been reckless, the case goes to trial. The burden of coming forward and the burden of persuasion will be on the plaintiff to defeat the assumption of risk presented by the defendant.
 
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