Engaging in a sporting activity that involves a known element of risk of injury? Under California law, if you are injured by that known risk your recovery against others whose negligence contributed to your injury may be barred by the doctrine of “primary assumption of the risk.” Does the doctrine apply to a child injured while traveling along an uneven sidewalk on a scooter? The Court of Appeal is skeptical. The court’s summary:
Tatiana Childs fell and suffered serious injury when she rode a small ‘razor’ scooter over an uplifted section of sidewalk on a residential street in the County of Santa Barbara. She sued the County contending that the sidewalk constituted a dangerous condition of public property. The trial court ruled that the doctrine of primary assumption of risk barred liability because, as a matter of law, riding a scooter is a recreational activity, and falling is an inherent risk of the activity. She appeals a summary judgment granted in favor of the County. (Code Civ. Proc., § 437c, subd. (c).)We conclude that riding a scooter is covered by the doctrine of primary assumption of risk only when the activity involves an element of danger, requires physical exertion and skill, and includes a competitive challenge. A triable issue exists in this case regarding whether Tatiana was riding her scooter in such a manner. Accordingly, we reverse.
The County argued that falling from a scooter is a risk inherent in the use of the scooter, and that its uneven sidewalk did not increase that inherent danger. The Court, to the contrary, concludes that the risk of injury is not inherent in simply using a scooter. Rather, the risk to which “primary assumption of the risk” relates requires a showing that the scooter was being used in a risky or competitive fashion.
In support of its motion for summary judgment, the County relied on allegations in the complaint to establish that Tatiana was riding a scooter on a residential sidewalk and fell ‘as she rode over a break in the sidewalk that was raised more than three inches above the adjoining sidewalk section.’ The County offered no evidence that she was riding at any particular speed, or with other children in a structured or unstructured contest such as a race, or was testing the limits of her ability or the scooter, or that she was attempting any trick or maneuver requiring skill. Based on the evidence, Tatiana may have been engaged in no more than the diversion of getting from one place to another through the use of a child's toy with wheels. Further, the characteristics of the scooter show that it was not a formidable means of transportation. It was lightweight and could be folded up into something not much larger than a breadbox. And, Tatiana testified that it ‘looks like a normal scooter, except it's a lot smaller.’* * *
Application of the doctrine of assumption of risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine. To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport. Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport. There are no cases holding that the use of an automobile or bicycle or other equipment is automatically subject to the assumption of risk doctrine solely because the equipment can be used in a sport or sports-related activity.
[All emphasis added.]
The decision in Childs v. Superior Court of Santa Barbara County (January 22, 2004), Case No. B162350, can be found at the following links in PDF and Word formats.
From a non-expert's, practically laypersonish point of view, all I can say is, "Who woulda thunk dis wuz da law?"
Posted by: David Giacalone | January 29, 2004 at 10:45 AM