California Court of Appeals Upholds Finding in Favor of Ice Center Under Primary Assumption of Risk When Ice Hockey Game Spectator Injured by Stray Puck

A recent opinion from the California Court of Appeal addressed the primary assumption of risk doctrine. This doctrine, applied to inherently dangerous activities, holds that there is no duty to eliminate the risks posed by the activity, but there is a duty not to unreasonably increase risks. In this case, the issue was whether an ice center was liable under a premises liability claim when a spectator was injured by a hockey puck while watching a game.

Pagman Khodabandeh and Zubi Khodabandeh brought a lawsuit against Ice Center Enterprises, LLC (Ice Center), alleging that Pagman had been struck by a hockey puck while watching an ice hockey game at Ice Center in San Mateo. The complaint included a cause of action for premises liability and Zubi, Pagman’s mother, alleged negligent infliction of emotional distress.

Ice Center moved for summary judgment. In their statement of facts, the injured party contended that a short opaque wall with Plexiglas forms a barrier around the ice surface at Ice Center. A conduit extends above the Plexiglas and attaches to netting up to the ceiling. Pagman alleged that from the back row bleachers where he sat, there was an open space – a gap between the netting and the door adjacent to his seat – and the hockey puck traveled from the ice surface through this gap.

Ice Center contended that under the primary assumption of risk doctrine, it owed no duty to Pagman regarding flying hockey pucks because they are an inherent risk to spectators of ice hockey as a mater of law, and Ice Center did not increase those risks of injury beyond what is inherent in the activity. The court granted Ice Center’s motion for summary judgment, finding that Ice Center had no duty to Pagman and, therefore, no liability to Zubi. The Khodabandehs appealed.

In regard to the premises liability claim, the appellate court stated that the primary assumption of risk doctrine limits liability for recreational services that pose an inherent risk of injury. The duty is to not unreasonably increase the risks of injury beyond those that are inherent. The court here found that Ice Center met their burden on summary judgment because a flying hockey puck is an inherent risk that those watching ice hockey assume. The primary assumption of risk doctrine therefore relieves defendants of the duty to eliminate the inherent risk of injury from flying pucks. Pagman was hit by a flying puck while watching ice hockey, and Ice Center did not increase the inherent risk. It was not liable as a matter of law.

The appellate court rejected the Khodabandehs’ argument that by installing a safety net Ice Center voluntarily assumed a duty to Pagman. The court stated that the cases cited by the Khodabandehs were based on the negligent undertaking doctrine. That doctrine holds that a defendant who otherwise does not owe the plaintiff a duty of care may assume a duty by voluntarily providing services. However, the court stated the underlying issue was whether Ice Center increased the risk of injury beyond the preexisting risk.

Analyzing Ice Center’s placement of bleachers and netting, the appellate court stated there had not been an increase in the risk inherent to the activity. By leaving a gap between the top of the doors and the netting, there was no evidence that there was a greater risk than if there had not been any netting at all. The court also rejected the contention that there was a false sense of security to spectators by providing the netting.

The court concluded that the Khodabandehs failed to show error regarding the premises liability action.

Because Ice Center was not liable for Pagman’s physical injury, the court stated Zubi Khodabandeh’s dependent action for negligent infliction of emotional distress must fail.

The judgment of the lower court was affirmed.

The Southern California personal injury attorneys at Sharifi Firm represent injured individuals pursuing claims for compensation. We represent victims throughout the state, offer a no-obligation, free consultation, and can be reached by calling 1-866-422-7222.