Porsche Cars North America raised some eyebrows when, in an answer filed in the lawsuit over the death of The Fast and the Furious franchise star Paul Walker, it asserted that Porsche is not liable because Walker assumed the risk of riding in its car. While the significance of Porsche’s rather routine pleading has perhaps been a bit overblown in media reports, it provides a good opportunity to highlight the rule the “assumption of the risk” doctrine plays in modern American tort law and why Porsche will likely be unsuccessful with this defense.
Walker died alongside his friend, Roger Rodas, in a 2013 crash in Santa Clara, California while he was a passenger in Rodas’s 2005 Porsche Carerra GT. An investigation determined that speed was the main cause of the crash, and that the car was traveling between 80 and 93 miles per hour. Walker’s 16-year-old daughter sued Porsche alleging that the crash was caused by Porsche’s failure to install a traction control system and that a defective seatbelt exacerbated Walker’s injuries and prevented him from escaping the burning car.
In its answer, Porsche asserted a number of defenses, but the defense that gained the most media attention was “assumption of the risk.” Porsche alleged that Walker “knowingly and voluntarily assumed all risk, perils and danger in respect to the use of the subject 2005 Carrera GT,” and that his assumption of the risk “should bar the plaintiff’s recovery or, in the alternative, should reduce the plaintiff’s right to recovery from [Porsche] in an amount equivalent to Walker’s fault.” While it is understandable that Walker’s family would find this apparent “blaming of the victim” offensive, it is a normal part of litigation for a defendant to plead every applicable defense in its answer, just as plaintiffs often plead every applicable theory of recovery when they file suit.
However, it is unlikely that Porsche’s assumption of the risk defense will be successful. “Assumption of the risk” actually encompasses several overlapping doctrines that provide a defense to liability for negligence at common law. There is “express” assumption of the risk, which occurs when the plaintiff expressly agreed to relieve the defendant of liability for harm that might occur, such as when a plaintiff signed a waiver before going skydiving, for example.
The next type, sometimes called “primary” assumption of the risk, occurs when the plaintiff impliedly assumed the risk of harm by engaging in an inherently dangerous activity with the defendant, thereby relieving the defendant of the duty to avoid a particular type of harm. The most common example of this type of assumption of the risk is seen in competitive sport: if you play football, you assume the risk of injury inherent in football, and generally other players are not liable if they injure you in a way that might be expected to occur in a football game.
There is also “secondary” assumption of the risk, which occurs when the plaintiff encounters a danger created by the defendant (perhaps even negligently created by the defendant), but knowingly and voluntarily exposes himself to the risk anyway. At common law, “secondary” assumption of the risk was a complete defense to liability even if the plaintiff acted reasonably in exposing himself to the risk.
At common law, there was little practical difference between the various types of assumption of the risk, because the result was the same: the plaintiff found to have assumed the risk was completely barred from recovery. However, California, like Texas, has enacted a “comparative negligence” scheme (called “proportional responsibility” here in Texas) where fault is apportioned between the plaintiff and defendant, and the plaintiff’s recovery is reduced by the percentage of fault assigned to him. This supplanted the all-or-nothing common-law rule of “contributory negligence” rule where the plaintiff recovered nothing if his own negligence was even slightly contributed to his injury.
California courts, like Texas courts, have abolished the “secondary” assumption of the risk defense, holding that, because this doctrine looks to the plaintiff’s own conduct, it was subsumed into each state’s respective comparative negligence scheme. Thus, even if it is found that Paul Walker knowingly exposed himself to a risk that was negligently created by Porsche, his family may still recover for his death, though this assumption of the risk can be taken into account by the jury in assigning a percentage of fault to Walker.
“Primary” assumption of the risk is still alive in California, however, just as it is in Texas. Courts have held that because this doctrine looks to the relationship between the plaintiff and the defendant, and because it negates the defendant’s legal duty, it has not been subsumed into the comparative negligence system. Thus, a plaintiff found to have “primarily” assumed the risk is still barred from recovery in both California and Texas.
However, it is unlikely that Porsche will succeed in a primary assumption of the risk defense. While primary assumption of the risk has been applied to defend other participants or hosts of the dangerous activity, such as other players, referees, and coaches, it is typically not applied to protect manufacturers of defective equipment. In fact, California courts are reluctant to apply the doctrine at all in cases of strict products liability cases like the suit against Porsche. For example, a California appellate court has held that the manufacturer of a jet ski could not assert assumption of the risk as a defense to a lawsuit filed by someone who was injured after falling off one of their jet skis.
If you or someone you know has been injured as a result of the carelessness of another, contact an attorney at Abraham, Watkins, Nichols, Agosto, Aziz & Stogner by calling 713-396-3964 or toll free at 800-594-4884.