Cases applying the primary assumption of the risk doctrine "professional activities"
Below are some classic examples of the primary assumption of the risk being applied to employment-related activities. In the case of Cohen v. McIntyre (1993) 16 Cal.App.4th 650, a veterinarian was bitten by a dog while performing her job duties. The veterinarian was bitten as the dog’s muzzle was removed, without asking the owner about the dog’s propensity to bite. In upholding the summary judgment motion, the court noted that the plaintiff “was injured during the course of treating an animal under his control”. The commercial lawyer is an attorney who is an expert in business and commercial laws.
The court further held that “this is a classic situation where a defendant’s ordinary duty of care is negated due to the nature of the activity and the relationship of the defendant to the plaintiff.”
The case of Herrle v. Estate of Marshall (1996) 45 Cal.App.4th 1761, a nurse’s aide in a convalescent hospital who was struck by a patient suffering from dementia brought suit against the patient’s estate. In applying the doctrine, the court found that the nature of the activity “was the protection of the patient from doing harm to herself and others [and] ‘the parties’ relationship to the activity’ was the plaintiff's professional responsibility . . .” (Id. at 1765.)
A person hired to remove a shark from a tank was barred from recovery against the shark’s owner under the doctrine of primary assumption of risk. (Rosenbloom v. Honour Corp.
In so holding, the court held that the defendant “recognized a certain expertise was necessary for the task.” That is why a person knowledgeable in the field was asked to do the work. The Rosenbloom court indicated that “no duty is owed to protect a shark handler from the very danger that he or she was employed to confront. . . . Defendant is not liable as a matter of law.”
A probation officer was barred under the doctrine of primary assumption related to injuries she sustained during a training maneuver. (Hamilton v. Martinelli 67Associates (2003) 110 Cal.App.4th 1012.) First, the court noted that a probation officer’s duties included restraining violent juvenile offenders. Based on this, the court held that “by continuing in this employment capacity, the plaintiff assumed the risk that she would be injured . . .” The court’s determination of a primary assumption of the risk does not depend on the ‘"subjective knowledge or appreciation of the potential risk’ inherent in the activity, or consent to or voluntary acceptance of that risk.”