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California Doctrine of Primary Assumption of Risk

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California Doctrine of Primary Assumption of Risk

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    2. California Doctrine of Primary Assumption of Risk and Its Application in Recreational Marine Cases

    3. Presented by Marker Lovell

    4. Primary Assumption of the Risk Duty Question- A person has no duty to protect others from the inherent risk of an activity. A risk is inherent if can be prohibited without discouraging vigorous participation in an activity. Knight v. Jewett Touch Football 3 Cal 4th 296 (1992) Ford v. Gouin Barefoot Waterskiing 3 Cal 4th 339 (1992)

    5. Secondary Assumption of Risk Comparative Fault/Comparative Negligence

    6. Types of Recreational Marine Activities To Which it Can Apply

    7. TEST FOR ACTIVITIES THAT QUALIFY Sporting Activities done for enjoyment or thrill, requires physical exertion as well as elements of skill and involves the chance of personal injury.

    8. WATERSKIING

    9. WAKEBOARDING

    10. PWC Riding

    11. SPORTFISHING

    12. SAILBOAT RACING

    13. BOATING

    14. Expansion of Doctrine to Other Activities Beniati v. Black Rock City , LLC, 175 Cal. App. 4th 650 (2009) (Burning Man)

    15. CO-PARTICIPANTS Liable only for Intentional / Reckless Conduct. Not Ordinary Negligence

    16. COMMERCIAL OPERATORS Duty Not to Increase Inherent Risks of The Activity

    17. Where could it be applied?

    18. FISHING CHARTER

    19. RENTAL FACILITY

    20. HOUSEBOAT RENTAL

    21. MARINA

    22. COMMERCIAL OPERATORS (continued) Equipment Malfunction/ Defective Equipment Distinguished

    23. Procedural Issues Summary Judgment Expert Testimony Used to determine nature of activity No need for an expert on topics of common knowledge

    24. Statutory Violations Violation California Harbors & Navigation Code

    25. Jurisdictional Issues No Primary Assumption of Risk in Maritime Law California Cases (Navigable Waters) Federal Cases

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