In Hass v. RhodyCo Production (No. A142418 – 8/13/2018), the First Appellate District’s applied longstanding rules regarding when express waivers are effective and the primary assumption of risk doctrine to deny summary judgment in favor of a race organizer in a wrongful death action.
In 2011, Peter Hass (“Hass”) suffered a cardiac arrest, collapsed, and died at the finish line of the 2011 Kaiser Permanente San Francisco Half Marathon. Hass’s wife and his minor children (collectively, the “Hass Family”) sued the race’s organizer, RhodyCo Productions (“RhodyCo”), for negligent organization and management of the race with respect to provision of emergency services.
RhodyCo moved for summary judgment, asserting the Hass Family’s claims were barred by a release of liability signed by Hass and the primary assumption of risk doctrine. The trial court granted the motion on both grounds. The Hass Family moved for a new trial, based on additional evidence that RhodyCo failed to follow through with its EMS plan by failing to hire a medical doctor to supervise the provision of emergency medical services. The trial court granted this motion and allowed leave for the Hass Family to amend the Complaint to plead gross negligence. RhodyCo appealed the order granting a new trial and the Hass Family appealed the order granting summary judgment.
On Appeal, the Court found that summary judgment was not warranted based on primary assumption of risk and there was a triable issue of material fact as to whether or not the waiver was effective.
Citing to Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d 1 and its progeny, the Court explained where a participant expressly agrees to waive a defendant’s negligence and assume all risk in a waiver, the participant’s heirs are barred from a subsequent wrongful death action based upon negligence, but not gross negligence.
After examining the release of liability, the Court determined Hass intended to assume all risks associated with the race and release RhodyCo from all liability, blocking the Hass Family’s wrongful death claim for ordinary negligence. However, the Court also determined there was a triable issue of fact as to whether or not RhodyCo’s failure to implement the EMS plan constituted gross negligence.
The Court reviewed Knight v Jewett (1992) 3 Cal.4th 296, Nalwa v. Cear Fair, L.P. (2012) 55 Cal.4th 1148, and their progeny to determine the duties owed to participants by operators and organizers of recreational activities. In short, the primary assumption of risk doctrine creates a limited duty for operators and organizers of recreational activities not to increase the inherent risks of an activity and the ordinary duty of care to minimize the extrinsic risks of the activity without altering the nature of the activity.
The Court held that cardiac arrest is an inherent risk of running and there was nothing to suggest that RhodyCo had increased this risk. However, the Court held the provision of emergency medical care was a risk extrinsic to running and could be provided by a race organizer without altering the fundamental nature of running. Therefore, the primary assumption of risk doctrine would not act as a bar to the question of whether RhodyCo acted with gross negligence in its provision of emergency medical services.
Hass is important for reaffirming two propositions. First, express waivers may be a complete defense to a wrongful death action based on ordinary negligence, but not gross negligence, where the language of the release demonstrates intent to expressly waive liability and assume all risk of injury. Second, operators and organizers of recreational activities have a limited duty not to increase the inherent risks of an activity under the primary assumption of risk doctrine and the ordinary duty of care with respect to the extrinsic risks of the activity, which should be minimized to the extent possible without altering the nature of the activity.
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