Cal Biz Lit: Court of Appeal Expands Assumption of Risk Defense in Burning Man Case

It seems hard to believe, but until not all that long ago (1975, to be exact), contributory negligence was a complete defense in California tort cases. There were some wildly successful defense lawyers who would try and win just a ton of product liability and other personal injury cases by arguing that, sure there client was at fault, but because the plaintiff was just a little, tiny bit at fault too, game over.

Then the California Supremes adopted pure comparative negligence in Li v. Yellow Cab (1975) 13 Cal.3d 804, and the world changed forever. Well, at least the tort world did. California juries now apportion fault between plaintiff and defendants in all kinds of tort cases, and contributory negligence isn't a bar to anything.

But there's one remnant of the old system: the doctrine of primary assumption of risk, which the Cal Supremes recognized in Knight v. Jewett (1992) 3 Cal.4th 296. In that case, the plaintiff was injured playing touch football and was stupid enough to sue the other players for his injuries. The Cal Supremes eliminated nearly all liability for sports injury cases, ruling that:

a participant in an active sport breaches a legal duty of care to other participants-i.e., engages in conduct that properly may subject him or her to financial liability-only if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

Id. at p. 320.

Now comes the First District Court of Appeals in Beninati v. Black Rock City, LLC (June 30, 2009) ___ Cal.App.4th ___ (No. A12153). The plaintiff was injured at the Burning Man festival in Nevada when -- I'm not making this up -- he got too close to the burning man. He sued the Burning Man operators. Pretty stupid case. But not a sports injury.

That's ok. The Court held that the case was completely barred by the primary assumption of the risk doctrine, and that the doctrine applied not just to sports, but to any activity "involving an inherent risk of injury to voluntary participants like Beninati, where the risk cannot be eliminated without altering the fundamental nature of the activity."

How broad did they just make the defense? I'm guessing pretty broad. And I'm guessing we'll find out in the years to come, at least if the Supremes don't touch this case.