It's pretty freaking obvious that if you're at Burning Man and approach a flaming 60 foot wooden structure to throw some stuff into it of your own, you're potentially comparatively negligent. Totally.
But what the Court of Appeal holds today is that recovery is barred in its entirety -- and as a matter of law, no less -- based upon the doctrine of primary assumption of the risk. We've previously limited this doctrine to the context of sports and other like-recreational injuries; football, skiing, hockey, etc. It seems a very major, and potentially troubling, expansion of this doctrine to say that you can "primarily assume the risk" of pretty much anything we think is "obviously" dangerous. But that's exactly what the Court of Appeal holds.
As a policy matter, maybe that's the right call. Maybe if you do something really stupid we should say that you recover absolutely nothing even if the defendant also did something negligent (i.e., slightly stupid). That would, of course, be consistent with a contributory negligence rule. Something that California has expressly rejected. Of course, the Court of Appeal might say "Well, here, we're talking about something really, really, really obviously stupid." Though drawing that line seems difficult. And potentially why we have juries rather than judges decide the level of comparative negligence in most cases.
Is this a good case in which to articulate a major expansion of the doctrine of primary assumption of the risk? Yes. It is. You have at least a facially plausible argument that going to Burning Man is "sort of" like a sport; at a minimum, it's certainly a cultural experience. So you might say that just like sports would be frustrated if we impose any degree of liability based upon voluntary participation, the same's true for cultural experiences like Burning Man.
But where does it stop? Is drinking Coca-Cola from a glass bottle similarly a cultural experience such that you can't recover if the bottle shatters? Watching television? Fist-bumping? The line that we've previously drawn in the primary assumption of the risk area -- between "sports" and "non-sports" -- is admittedly a fuzzy one. But at least it's a line. The Court of Appeal's holding here seems to me to leave open the possibility that anything is now open to a primary assumption of the risk argument.
Which, again, a reasonable person could indeed support on policy grounds. But as a doctrinal matter, I'm not sure that's an accurate recitation of the import of existing precedent, or something that we want the Court of Appeal deciding rather than the California Supreme Court (even if you decide that the judiciary, rather than the Legislature, is the proper one to decide these things).
So it's an interesting, and potentially revolutionary, case. Let's see what happens to it from here. Informed obvservers may well want to spend the energy on this one to get it amended, depublished, or taken up.
