(Reprinted with permission from the Consumer Attorneys of San Diego,  Trial Bar News, Vol. 32, Issue 8, p. 21 (October 2009)

I suspect most everyone reading this publication is familiar with the doctrine of primary assumption of the risk and its application, at least in California courts, to injuries sustained in sporting events and other physically challenging endeavors.  Rare is the practitioner who has not encountered some permutation of this defense in a case.  Indeed, published decisions addressing primary assumption of the risk number in the hundreds; a pretty impressive statistic considering that the doctrine largely originated from the less than two decades old decision in Knight v. Jewett (1992) 3 Cal.4th296.

At this point, the basic parameters of the doctrine are pretty well established.  Primary assumption of risk is a defense in cases “where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury....”  Knight, supra,3 Cal.4th at pp. 314‑315.  It generally comes into play in a sports or athletic context, i.e., where “the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.”  Record v. Reason (1999) 73 Cal.App.4th472, 482.  See also, Kindrich v. Long Beach Yacht Club (2008) 167 Cal.App.4th 1252, 1262 [“jumping” off gang plankin order to disembark boat was not a sporting activity to which primary assumption of the risk applied].

In explaining the reasoning behind the application of primary assumption of the risk to sports settings, the Knight plurality explained that “conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself” (id. at p.315), and imposing liability “might well alter fundamentally the nature of the sport by deterring participants from vigorously engaging in activity that falls close to, but on the permissible side of, a prescribed rule.”  Id. at p. 319.  But what of cases not involving some type of sporting activity? 

The appellate courts seem divided on the issue.  One of the most recent decisions to address the interplay between primary assumption of the risk and conduct that was not sporting or athletic is Beninati v. Black Rock, LLC  Beninati is noteworthy not only for its discussion of assumption of the risk, but also because it is, to my knowledge, the first published tort-related California case to arise from the very popular Burning Man festival held annually in the western desert. (2009) 175 Cal.App.4th650.

In Beninati, Division Four of the First Appellate District grappled with the application of primary assumption of the risk to a personal injury case brought against the promoter of the Burning Man event for injuries sustained by the plaintiff during the 2005 festival.  The Burning Man festival is an annual week‑long event held at a remote desert location at Black Rock City, Nevada. There are no permanent structures at the location, nor does Black Rock City have police or health care services.  If needed,emergency medical assistance is on site to assist festival goers.  While a number of large structures erected for the festival are burned, the culmination of the festival is the burning of a 60‑foot tall wood sculpture in the figure of a man, from which the festival name is derived.  The Burning Man blaze occurs in front of a crowd of thousands of people.  Once ignited, the wood sculpture burns until it topples and then continues to burn in a gigantic bonfire.  Persons who attend Burning Man throw objects into the fire “ ‘so attendees can participate more fully and completely with [sic ] the Burning Man experience.’ ”  Beninati,supra, at p. 654.

The plaintiff in Beninati attended the festival in the years 2002, 2003, and 2005.  He chose to attend the festival to get away from his “workaholic” life, and to come together with a community of people with interests in art, alternative healing,and spirituality.  Beninati, supra,at p. 654.  He planned to attend the 2005festival with a friend; however, six weeks before the festival's commencement,the friend died in a motorcycle accident. Id.  Therefore, Beninati went to the festival with a photograph of his deceased friend, intending to place the photograph in the Burning Man bonfire.  Id.

The Burning Man sculpture was ignited near sundown on September 3, 2005.  Beninati, supra,at p. 655.  When Beninati arrived at the bonfire site, the sculpture had already been ignited and had fallen.  Id. The flames upon his arrival were about 40 feet high.  Id. Beninati walked around the perimeter of the fire three times over a 90‑minute period, each time circling a little closer to the fire. Id.
 
As the fire died down somewhat, a number of people approached and threw things into it. Beninati then saw someone walk toward the burning embers and he decided to follow the person's path, walking about seven steps toward the smoldering fire.  Beninati, supra, atp. 655.  He stopped at a spot where there was fire on either side of him.  Id.  He threw his friend's photograph on the fire and watched it burn. He then took a few more steps forward.  Id. His right foot “ ‘caught on something or [he] tripped on something,’ ”which may have been a cable or something solid. Id.  He tripped and fell into the fire twice, badly burning both of his hands. When he exited the fire area, people poured water on him. Paramedics, who were present at the festival around the clock, transported him to obtain medical treatment.

Beninati sued defendant Black Rock, LLC, alleging that Black Rock negligently allowed attendees to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress “routes and corridors” for those attendees who were “moved by the event to directly participate in the burning ritual.”  Beninatiat p. 653.  The trial court granted Black Rock’s motion for summary judgment on the basis of primary assumption of the risk.

Beninati appealed, claiming there was no authority for extending primary assumption of the risk to ‘low‑impact’ cultural activities of the sort at issue in his case.  The appellate court did not agree.  The court acknowledged that Knight, supra, and a vast majority of the cases following it involve “active sports,” but noted the doctrine has also been applied to other activities “involving an inherent risk of injury to voluntary participants like Beninati,...”  Beninati at p. 658.  In particular, the court referenced the line of assumption of the risk cases invoking the “firefighter's rule,” a rule that provides that one who sets a fire owes no duty of care to a firefighter injured while engaged in fire suppression activities.  Id., quoting Knight, supra,3 Cal.4th at p. 309, fn. 5.  The principal rationale behind this conclusion is that the party who negligently started the fire had no legal duty to protect the firefighter from the very danger that the firefighter is employed to confront.  Because the defendant in such a case owes no duty to protect the firefighter from such risks, the firefighter has no cause of action even if the risk created by the fire was so great that a trier off act could find it was unreasonable for the firefighter to choose to encounter the risk.  Id., quoting Knight,supra, at pp. 309-310.

The court in Beninati found the situation before it sufficiently analogous to those cases in which liability was barred by the“firefighters’ rule” and held that the rule extended to the plaintiff’s situation.  The court noted that “[w]hile Beninati was not a firefighter, he deliberately, and with awareness of specific risks inherent in the activity, nonetheless chose to engage in an activity similar to that engaged in by a firefighter as part of the firefighter's professional duties.”  Id. at658.  Describing the risk of injury to those who voluntarily decide to partake in the commemorative ritual at Burning Man as “self‑evident,” the court held that the plaintiff assumed the obvious risk as a matter of law.  Id. at658-659.

The invocation of the “firefighter’s rule” by the Beninati court seems questionable and the case may fall under the old adage of “bad facts make bad law.”  The court’s evident concern that Beninati voluntarily chose to encounter a known risk is understandable, but that is generally a circumstance governed by principles of comparative negligence rather than primary assumption of the risk.  See, e.g., Knight, supra, atpp. 314-315.  Moreover, the“firefighter’s rule” is grounded in the idea that firefighters are paid to confront risks that are inherent in their job and therefore there liability should not be imposed upon people who arguably create the risks firefighters are employed to address.  The plaintiff in Beninati was not being paid to confront a hazardous fire, nor was he under any other social obligation to do so.  As such, his case doesn’t seem comparable to that of a safety professional.

In any event, it will be interesting to see what impact, if any, Beninati has on the continued development and expansion of primary assumption of the risk in California. Stay tuned.