Key Decisions

July 2013 – Primary Assumption Of The Risk Applied

(filed under: Key Decisions Archive | July 22, 2013)

Primary Assumption Of The Risk Applied

Cann v. Stefanec, 217 Cal.App.4th 462, filed June 24, 2013, published June 24, 2013


Scarlet Cann and Annie Stefanec were members of the UCLA women’s swim team. The team lifted weights twice a week in the weight room for the purpose of improving strength to help in competitive swimming. During one session, Stefanec began to lose her balance and dropped the weights she was holding — per her coach’s prior instructions. The weights rolled a few feet and hit Cann, who was doing pushups.

Cann sued for personal injuries. Stefanec moved for summary judgment based on the doctrine of primary assumption of the risk. The trial court granted her motion.


The Court of Appeal affirmed.

The court first looked at the doctrine of primary assumption of the risk, noting that although people generally owe a duty of due care not to cause an unreasonable risk of harm to others, some activities — specifically many sports — are inherently dangerous. Imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. As a result, when one suffers an injury because of those inherent dangers, one generally has no recourse.

The court rejected Cann’s argument that the doctrine of primary assumption of the risk did not apply because she and Stefanec were not co-participants in a sport. First, they were co-participants in a training session consisting of a circuit of three exercises for the purpose of adding strength as swimmers. Second, after the decision in Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148 (2012), it did not matter whether the circuit training by Cann and Stefanec was characterized as a sport or recreation, as the doctrine of primary assumption of the risk applies to both types of activity.

The court also rejected Cann’s argument that the doctrine did not apply because having a weight fall on her was not an inherent risk of swimming or weight training. It said: “we have no difficulty in making a judicial determination that weight lifting involves an inherent risk of injury to persons in the vicinity of lifters who drop weights because of a loss of balance, injury suffered during a lift, or other reasons.” Dropping a weight that is too heavy is not outside the bounds for conduct in weight training.

Moreover, there was no evidence Stefanec acted recklessly in dropping the weights. She acted on her coach’s prior instruction and her reaction was common — when someone is using too much weight or loses their balance. The court even noted that Cann had dropped weights when they were too much for her.


Given the trend in primary assumption of the risk cases, the court’s decision is not surprising and many would say not even an extension of the law.