In Robert Fazio v. Fairbanks Ranch Country Club, 2015 WL 367100, published January 29, 2015, the California Court of Appeal, Fourth District, reversed the trial court’s order granting summary judgment in favor of Fairbanks. The Court of Appeal found that Fairbanks failed to meet its initial burden on summary judgment to show there was no triable issue of material fact that Fairbanks did not increase the inherent risk of performing on a stage. The Court further held that even had Fairbanks met its initial burden on summary judgment, the question of whether Fairbanks increased the risks should be decided by the trier of fact, not the court.
Robert Fazio, a musician who had performed on stage many times before the incident, was scheduled to perform at Fairbanks’ country club. The stage on which Fazio was to perform was owned by Fairbanks and assembled that day by Fairbanks employees. When the stage assembly was complete it had triangular gaps at the sides. While Fazio was setting up his equipment, he stepped off the side of the stage and fell into one of the gaps suffering injury. He subsequently sued Fairbanks for negligence.
Fairbanks moved for summary judgment under primary assumption of risk, arguing it owed no duty to Fazio because he assumed the risk of harm inherent in the activity of a musician (i.e. falling off stage). Fazio opposed the motion, arguing there were triable issues of fact as to whether Fairbanks’ actions in constructing the stage increased the inherent risk of falling. The trial court found the doctrine of primary assumption of risk barred Fazio’s claim, rejecting his contention that the gaps at the side of the stage increased the risk of falling. Fazio appealed.
The Court of Appeal agreed with Fairbanks that falling off stage is an inherent risk for all stage performers, but disagreed that summary judgment was appropriate. Fairbanks had the initial burden of production to establish the nonexistence of a triable issue of material fact as to each element of its assumption of the risk defense, including that its actions in assembling the stage did not increase the inherent risks Fazio assumed as a stage performer. Fairbanks, however, limited its argument solely to the issue that falling off stage is an inherent risk of performing on stage. Fairbanks made no attempt at showing it did not increase the inherent risk of harm and presented no evidence to refute Fazio’s claim that the stage construction increased that risk. Accordingly, the Court held that Fairbanks failed to meet its initial burden on summary judgment that there was no triable issue of fact concerning this element of its defense.
The Court of Appeal went further, holding that because there was some evidence Fairbanks may have increased the inherent risk of harm based on its stage construction, resolving this issue presented a question of fact for the jury—not the court—as it did not further define Fairbanks’ duty—which is a legal question. Rather, because resolution required application of the standard of care (duty not to increase the inherent risks) to the facts of the particular case – it fell within the traditional role of the trier of fact.
From this case it will be more difficult for a defendant to prevail at summary judgment on primary assumption of risk when plaintiff alleges defendant increased the inherent risks of an activity. Not only will defendant have to put forth affirmative evidence that it did not increase the risks, but if plaintiff sets forth even a scintilla of evidence to the contrary, the court will likely find the issue to be a question for the jury to decide.
This document is intended to provide you with information about product liability and general liability law related developments. The contents of this document are not intended to provide specific legal advice. This communication may be considered advertising in some jurisdictions.