Peter Hass collapsed and died of cardiac arrest after crossing the finish line at the 2011 Kaiser Permanente San Francisco Half Marathon. Hass’ wife and two minor children filed a wrongful death action against the race organizer, RhodyCo Productions, for negligent organization and management of the race with respect to provision of emergency services.
RhodyCo moved for summary judgment on the grounds that the claims were barred by the release signed by Hass and the primary assumption of risk doctrine. The trial court initially granted the motion, but after the plaintiffs filed a motion for new trial, the trial court reversed itself and found that primary assumption of the risk was inapplicable on these facts and that plaintiffs should have been allowed to amend the complaint to plead gross negligence. The Appellate Court agreed with the trial court that summary judgment was not warranted based on primary assumption of the risk and found that there was a triable issue of material fact as to RhodyCo’s gross negligence.
Applying longstanding rules regarding express waivers and citing to Coates v. Newhall Land & Farming, Inc. (1987) 191 Cal.App.3d1, the Court explained that while a release or waiver of liability by a decedent does not bar a wrongful death claim, the heirs are bound by the decedent’s agreement to waive a defendant’s negligence and assume all risk. In construing the release signed by Hass, the Court found that Hass intended to assume the risks associated with the race, including any risk related to RhodyCo’s negligence. The Court recognized that to allow released claims arising from hazardous recreational pursuits defeats the purpose for which releases are requested and given. The Court agreed with the trial court that the release constituted a complete defense based on ordinary negligence.
As a matter of public policy, however, a release does not preclude liability for gross negligence. Based on the factual questions raised as to whether RhodyCo failed to implement the approved emergency medical services plan, the Court determined that plaintiffs had met their burden to show a triable issue of fact as to gross negligence, making summary judgment inappropriate.
Next, the Court held that the primary assumption of risk doctrine does not act as a complete bar to plaintiffs’ negligence action. Citing Knight v. Jewett (1992) 3 Cal.4th 296 and Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, the Court recognized that, in sport settings, conditions which may otherwise be viewed as dangerous are often an integral part of the sport, and imposing a duty to mitigate the inherent dangers could alter the nature of the activity. The Court found that, while an operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport, it does have a duty to reasonably minimize the extrinsic risks so as to not unreasonably expose the participants to increased risk of harm. While there were no facts to suggest that RhodyCo did anything to increase the inherent risk of cardiac arrest in long distance running, the provision of emergency medical care was a risk extrinsic to running and could have been provided by RhodyCo without altering the nature of the race. The Court found there was a triable issue of fact as to whether RhodyCo acted grossly negligent in this regard, and that the primary assumption of the risk doctrine did not act as a complete bar to the negligence claim.
The holding in Hass is twofold. First, while express waivers may be a complete defense to a wrongful death action based on ordinary negligence, as a matter of public policy, such release are insufficient to preclude liability for gross negligence. Second, an operator or organizer of a recreational activity has no duty to decrease risks inherent to the sport under the primary assumption of risk doctrine, but it does have a duty of care not to increase the risk of injury over that inherent in the activity by reasonably minimizing the extrinsic risks without altering the nature of the activity. Therefore, in a wrongful death claim based on alleged gross negligence, neither express waiver nor the primary assumption of risk doctrine acts as a complete defense.
For a copy of the complete decision, see: Hass v. Rhody Co Productions