Vine

In personal injury cases arising from sporting activities, a defendant cannot be charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks are borne by the plaintiff as a matter of law, under the “primary assumption of risk” doctrine. However, the defendant can be held liable for breaching the duty not to increase the risks encountered by the plaintiff beyond the level inherent in the sport. This is an aspect of “secondary assumption of risk,” which operates as part of the comparative fault scheme. The plaintiff’s acceptance of the risk is weighed together with the defendant’s breach of duty as the trier of fact determines the parties’ proportionate responsibility for the injury. (Knight v. Jewett (1992) 3 Cal.4th 296, 314-316 [ 11 Cal.Rptr.2d 2 , 834 P.2d 696 ] (Knight); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 [ 4 Cal.Rptr.3d 103 , 75 P.3d 30 ] (Kahn); American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36-37 [ 93 Cal.Rptr.2d 683 ].)

Here, a jury was asked to determine whether a ski resort “was negligent in the design, construction, testing, or supervision of the snow board jump on which…

I agree with the analysis of the majority as to all issues except the conclusion that the judgment should be reversed because of the trial court’s failure to give an unrequested instruction as to secondary assumption of the risk. Before turning to that issue, however, I wish to expand somewhat on the reasons for which I concur in the conclusion that plaintiff Charlene Vine’s claim does not come within the scope of the Workers’ Compensation Act (the Act), Labor Code section 3200 et. seq.

Plaintiff’s injury is not covered by workers’ compensation.

“The right to workers’ compensation benefits is wholly statutory. [Citations.] ‘This statutory right is exclusive of all other statutory and common law remedies, and substitutes a new system of rights and obligations for the common law rules governing liability of employers for injuries to their employees.’ ” (Northstar at Tahoe v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1481, 1484 [ 50 Cal.Rptr.2d 475 ] (Northstar at Tahoe).) Labor Code section 3600 provides for workers’ compensation benefits where certain conditions of compensation are met. The conditions of compensation include, among other things, that “at the time of the…

In personal injury cases arising from sporting activities, a defendant cannot be charged with a duty to protect the plaintiff from risks inherent in the sport. Those risks are borne by the plaintiff as a matter of law, under the "primary assumption of risk" doctrine. However, the defendant can be held liable for breaching the duty not to increase the risks encountered by the plaintiff beyond the level inherent in the sport. This is an aspect of "secondary assumption of risk," which operates as part of the comparative fault scheme. The plaintiff's acceptance of the risk is weighed together with the defendant's breach of duty as the trier of fact determines the parties' relative responsibility for the injury. ( Knight v. Jewett (1992) 3 Cal.4th 296, 314-316 , 11 Cal.Rptr.2d 2 , 834 P.2d 696 ( Knight ); Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 , 4 Cal.Rptr.3d 103 , 75 P.3d 30 ( Kahn ); American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 36-37 , 93 Cal.Rptr.2d 683 .)

Here, a jury was asked to determine whether a ski resort "was negligent in the design, construction, testing, or supervision of the snow board jump on which…