Whether algae on a pool deck was a known recreational hazard invoking assumption of the risk is an issue of fact to be determined by the jury.

In Capri vs. L.A. Fitness Intern., LLC (2006) 136 Cal.App.4th 1078, 39 Cal.Rptr.3d 425, plaintiff sued a fitness club after he slipped and fell on the pool deck, alleging that the fall was caused by an accumulation of algae around the drain on the deck. The trial court granted summary judgment based upon an exculpatory clause in the membership agreement and a finding that the action was bared by primary assumption of the risk. The Court of Appeal reversed. The exculpatory clause was found to be invalid as there was an allegation that defendant had violated statutes requiring the defendant to keep the swimming pool at all times sanitary, healthful and safe. The exculpatory clause is invalid to the extent that it attempts to exculpate the defendant from violation of a statute. The Court of Appeal also found that the doctrine of primary assumption of the risk did not apply as there was a triable issue of fact as to whether or not algae on a pool deck is a known hazard or risk inherent to the use of a pool.

The application of the doctrine of primary assumption of the risk depends upon the manner in which recreational equipment is being used, not the manner in which it could have been used.

In Childs vs. County of Santa Barbara (2003) 115 Cal.App.4th 64, 8 Cal.Rptr. 823, a minor plaintiff was injured after she fell from a scooter that she had been riding on a sidewalk after encountering a sidewalk slab that was 3 inches higher than the one adjacent to it. The defendant prevailed on a summary judgment motion arguing that the use of a scooter constituted a sports-related recreational activity and that falling from the scooter was an inherent risk of the sport. The Court of Appeal reversed, finding that simply riding a scooter as a means of transportation on a public sidewalk is not a sport or sports-related recreational activity under the doctrine of primary assumption of the risk. There was no evidence that plaintiff was competing with other riders or attempting to perform any unusual maneuvers or tricks which might increase the hazard of falling. The Court distinguished this situation from the holdings in Moser vs. Ratinoff (2003) 105 Cal.App.4th 1211, 130 Cal.Rptr.2d 198 (doctrine applied to bar injury claim of bicycle rider for negligence against co-rider involved in recreational group bicycle ride) and Calhoon vs. Lewis (2002) 81 Cal.App.4th 108, 96 Cal.Rptr.2d 394 (doctrine applied to bar claim of skateboard user against premises owner for injury after he lost control of the skateboard on a driveway while performing a skateboarding trick).

State statutes concerning the operation of jet skis does not abrogate the application of primary assumption of the risk to the sport of jet skiing.

In Whelihan vs. Espinoza (2003) 110 Cal.App.4th 1566, 2 Cal.Rptr.3d 883, plaintiff sued the defendant for personal injuries after their jet skis collided.  Plaintiff alleged the defendant was negligent and had violated various provisions of the California Harbors and Navigation Code.  Plaintiff argued that the doctrine of primary assumption of risk did not apply here as subsequent to the California Supreme Court’s explication of the doctrine the Legislature had enacted statues which specifically prohibited persons from using jet skis in a reckless or negligent manner.

The Court of Appeals found that the newly enacted statutes did not abrogate the doctrine as the statutes did not explicitly demonstrate a clear intent to do so.  The Court of Appeals also rejected Plaintiff’s argument that there was a triable issue of fact as to whether the defendant’s conduct was so reckless as to be totally outside the range of ordinary activities involved in jet skiing. The court noted that plaintiff did not plead reckless or willful conduct and in fact, in characterizing the defendant’s conduct in briefing, the trial court, plaintiff had referred to the defendant’s conduct as "negligent".

In Moser v. Ratnoff (2003) 105 Cal.App.4th 1211, 130 Cal.Rptr.2d 198, the Court of Appeals determined that the Primary Assumption of the Risk Doctrine would apply to an organized, non-competitive, recreational bicycle ride. Plaintiff sought to recover for personal injuries after a collision with a fellow bicycle rider during the event. The Court of Appeals found the collision to be an inherent risk and additionally determined that alleged violations of the Vehicle Code did not displace the rule.

In the case of Sanchez v. Hillerach & Bradsby Co. (2002) 104 Cal.App.4th 703, 128 Cal.Rptr.2d 529, a college baseball pitcher brought a negligence action against a bat manufacturer and college sports association for severe brain injury sustained when he was hit by a baseball while on the mound. The trial Court granted summary judgment finding that being hit by a batted ball was an inherent risk a pitcher faced during a baseball game. The Court of Appeal reversed after determining that the evidence created a triable issue of fact as to whether the newly designed aluminum baseball bat introduced by the defendant prior to the season substantially increased the risk the pitcher faced by increasing the speed at which the baseball left the bat compared to other existing metal and wood bats. The plaintiff in opposition to the motion had introduced expert opinion that the new bat caused a batted ball to return to the pitcher at a significantly increased speed, reducing the pitcher's reaction time to a point below NCAA recommended standards.

In Nemarnik v. Los Angeles Kings Hockey Club, L.P. (2002) 103 Cal.App.4th 631, 127 Cal.Rptr.2d 10, plaintiff sued the defendant when she was injured after a puck flew off the ice and struck her in the mouth during pre-game warmups. Plaintiff claimed she was unable to see the puck, which struck her because of the people milling around her seat.

The Forum had a written policy requiring its ushers to prevent latecomers from blocking the view of seated guests during game action. In determining that the risk of being hit by a puck was a risk inherent to the sport, the Court of Appeal noted that it would be purely speculative to conclude that poor crowd control was causally related to the injury as plaintiff could not state that if she had a clear line of sight she would have been able to avoid the puck. The Court concluded that the issue was not whether the defendant owed a duty to provide better crowd control, but whether the defendant owed a duty to eliminate the risk of injuries from flying pucks. The Court of Appeal analogized the holding in this case to similar holdings in cases against baseball stadium owners by spectators injured by foul balls.

In the case of Rodrigo v. Koryo Martial Arts (2002) 100 Cal.App.4th 446, 122 Cal.Rptr.2d 832, the plaintiff sued a martial arts studio after having been kicked while she was standing in line waiting her turn to kick a target. The issue before the Court was whether the instructor increased the risk in learning the martial art. The Court found that punching and kicking were inherent risks, if not certainties, of participation in the class. The Court determined that by having students stand in line the instructor did not increase the risk of the plaintiff being kicked or punched. The plaintiff's expectation that she would not be kicked while standing in line was held to be irrelevant to a determination that primary assumption of the risk barred her claim. Since the instructor did not owe a general duty of care under the circumstances it was further determined that the alleged failure to properly supervise the students to make sure they were complying with his instructions did not increase the risk of injury inherent in learning tae kwon do.

The Court did note that if the instructor had instructed the students as to conduct which would increase the risk associated with learning the sport, then a claim might be made. However, here there was no evidence establishing that the instructor told his students to do or not to do anything that enhanced the risk associated with learning the sport.

In Bjork v. Mason (2000) 77 Cal.App.4th 544, 92 Cal.Rptr.2d 49, defendant was towing plaintiff in an inner tube behind his boat. The tow rope, provided by defendant, snapped, striking plaintiff in the eye. The trial court entered summary judgment for defendant on the basis of the primary assumption of the risk doctrine. In reversing the trial court's entry of summary judgment, the Appellate Court agreed that plaintiff and defendant were co-participants in sporting activity, and plaintiff assumed the risk inherent in that activity. However, the court found that when a participant in such a sporting activity also supplies the equipment, that act is separate and distinct from active participation, and primary assumption of the risk does not apply to that act. 

In Van Dyke v. S.K.I. Ltd (1998) 67 Cal.App.4th 1310, 79 Cal.Rptr. 775, plaintiff became a paraplegic after colliding with a directional sign pole on a ski slope at the Bear Mountain Ski Resort. Evidence was submitted that the sign post was virtually invisible until it was too late to take evasive action. There was also evidence of alternative measures which might have reduced the severity of plaintiff's impact with the pole (including break-away sign poles, sign poles wrapped in impact-absorbing materials, etc.).

In finding that the resort had increased the risks to plaintiff over and above those inherent in snow skiing, the court reversed summary judgment in favor of the defendants at the trial court level. This case appears consistent with Knight v. Jewett (1992) 3 Cal.4th 296, 834 P.2d 696, 11 Cal.Rptr.2nd 2, which defines primary and secondary assumption of the risk in California.