Recreational Injury Law Update

April 30, 2007

When a person participating in a recreational activity is injured due to the negligent and/or careless conduct of another person, common sense would seem to dictate that the injured person should be compensated for his/her injuries and damages caused by the wrongdoer. Unfortunately, under California law the rule is far from clear — and recently has grown strikingly unfavorable to injured victims in the recreational context. Often times, even the most careless wrongdoers are able to argue that their victims “assumed the risk”? of the harm that occurred — leaving even catastrophically injured persons totally uncompensated for their medical expenses and lost income.

Unbeknownst to most California consumers, the 1990’s marked the development of significantly unfavorable changes to California’s “Assumption of the Risk”? doctrine. As such, defense attorneys hired by insurance companies often argue that injured victims have “assumed the risk”? of the “inherent dangers”? of the recreational activity in which they participated — even when the wrongdoer behaved unusually carelessly or in a manner that would foreseeably cause harm to others.

Thus, for example, the California Supreme Court held that a boat driver who negligently towed a water skier too close to shore was not responsible for injuries caused when the skier was struck by an overhanging tree limb. Another court held that a negligent driver of a dune buggy was not responsible for catastrophic injuries caused to a motorcycle rider in an off-road collision even though the motorcyclist and the dune buggy driver were complete strangers, and the dune buggy driver failed to use spotters or warning flags. In both these cases, the Courts held that one “assumes the risk”? inherent in a sporting activity and the “coparticipants”? therefore have no duty to be reasonably cautious toward one and other.

These cases left victims of tragedy financially and emotionally ruined — despite that their injuries and damages were clearly caused by careless conduct that would foreseeably result in harm to other persons. While some exceptions to the rule exist, as a result of these decisions, we are increasingly seeing defense lawyers and insurance companies employing the “assumption of the risk”? doctrine in cases of clear cut negligence, where the defense has never been previously applied. For example, we are currently litigating a case where a horse at an equestrian center “spooked”? due to the presence of unleashed dogs (despite the specific rule stating all dogs must be on a short leash at the location — a rule designed specifically so that horses would not be “spooked”? by dogs running and barking in close proximity to the horseback riders.) The novice rider, who was taking a lesson at the time, was thrown from the horse and severely injured. The defense attorney for the dog owner’s insurance company is seeking to have the case thrown out, arguing the rider “assumed the risk”? of falling from a horse by engaging in the activity in the first place. We argue, among other things, that it is preposterous to claim that our client “assumed a risk”? of her horse being spooked by unleashed dogs, because unleashed dogs are specifically prohibited from being present at the location. While it would appear that we should prevail in this case, at the time of printing of this newsletter, defendant’s motion to dismiss the case was still pending.

The handling of any case involving injury during participation in a recreational activity now, more than ever, poses extremely complex legal issues of which the average California consumer is entirely unaware. Aitken * Aitken * Cohn is more than capable of putting forth the best legal and factual arguments to help clients navigate through this legal minefield.