Daily Blast June 24, 2013

On June 24, 2013, the California Court of Appeal, Second Appellate District, Division Five (LA) filed an opinion entitled, Cann v. Stefanac (June 24, 2013, B243396) __ Cal.App.4th ___, discussing the scope of the primary assumption of the risk doctrine. The Court of Appeal held primary assumption of the risk applies to a plaintiff injured during mandatory swim-team workout sessions intended to strengthen swimmers. (Slip opn., pp. 2, 6, 10.)

Plaintiff Cann was a member of the UCLA swim team. (Slip opn., p. 1.) She sustained injuries during a team workout/training session. While Cann was doing push-ups, a weight plate or weight bar fell on her head when a teammate lost her balance, dropped the weight bar and fell backwards onto the weight bar. (Id. at p. 2) Cann’s teammate, sued as a defendant in the case, filed a motion for summary judgment based on primary assumption of the risk. (Ibid.) The defendant teammate argued assumption of the risk focuses on the defendant’s conduct, not the plaintiff’s, and there is no requirement that parties engage in the same specific activity at the time of the injury for assumption of the risk to apply. (Ibid.) Cann argued she did not assume the risk that her teammate, or anyone else, would drop a weight on her head, and that her mere presence in the gym did not equate to assuming the risk of negligent conduct by others. (Id. at p. 3.) Cann also argued that she and her teammate were not competing nor were engaged in two distinct activities at the time of the accident. (Ibid.) The trial court granted defendant’s motion for summary judgment.

The Court of Appeal affirmed the summary judgment. (Slip opn., p. 10.) The court observed that primary assumption of the risk applies not only to activities classified as sports, but also to recreational activities where the risk cannot be eliminated without altering the fundamental nature of the activity. (Id. at p. 6.) Cann and her teammate were co-participants in a training session consisting of circuit training as part of a program to increase their strength as swimmers. (Id. at pp. 6-7.) Assumption of the risk is not limited to activities in which plaintiff is engaged in the exact same activity as the party causing the injury. (Id. at p. 7.) Even though Cann did not assume the risk of a head injury while doing pushups in a weight room, the conduct that caused the injury was not totally outside the range of ordinary activity in question because weight training involves the risk that a weight can be inadvertently dropped. (Id. at p. 8.) Finally, no evidence showed the defendant teammate acted recklessly or intentionally caused the harm. (Id. at p. 9.) Therefore, the assumption of the risk doctrine applies.

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