473 . Primary Assumption of Risk - Exception to
Nonliability - Occupation Involving Inherent Risk
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun ] was harmed by
[ name of defendant ] while [ name of plaintiff ] was performing
[his/her/ nonbinary pr onoun ] job duties as [ specify , e.g., a fir efighter ]. [ Name
of defendant ] is not liable if [ name of plaintiff ]’ s injury arose fr om a risk
inherent in the occupation of [ e.g., fir efighter ]. However , [ name of plaintiff ]
may recover if [he/she/ nonbinary pronoun ] pr oves all of the following:
[1. That [ name of defendant ] unreasonably increased the risks to
[ name of plaintiff ] over and above those inherent in [ e.g.,
firefighting ];]
[1. That [ name of defendant ] [misrepresented to/failed to warn] [ name
of plaintiff ] [of] a dangerous condition that [ name of plaintiff ] could
not have known about as part of [his/her/ nonbinary pronoun ] job
[1. That the cause of [ name of plaintiff ]’s injury was not related to the
inherent risk;]
2. That [ name of plaintiff ] was harmed; and
3. That [ name of defendant ]’s conduct was a substantial factor in
causing [ name of plaintiff ]’s harm.
New May 2017; Revised May 2020
Directions for Use
Give this instruction if the plaintif f asserts an exception to assumption of risk of the
injury that the plaintif f suf fered because the risk is an inherent part of the plaintif f’ s
duties. This has traditionally been referred to as the “firefighter’ s rule.” (See
Gr egory v . Cott (2014) 59 Cal. 4th 996, 1001 [176 Cal. Rptr . 3d 1, 331 P .3d 179].)
There are, however , exceptions to nonliability under the firefighter ’ s rule. The
plaintif f may recover if (1) the defendant’ s actions have unreasonably increased the
risks of injury beyond those inherent in the occupation; (2) the defendant
misrepresented or failed to disclose a hazardous condition that the plaintif f had no
reason to know about; or (3) the cause of the injury was not related to the inherent
risk. This instruction asks the jury to determine whether an exception applies.
( Gr egory , supra , 59 Cal.4th at p. 1010.) These exceptions are presented in the
options to element 1.
While duty is a question of law , courts have held that whether the defendant has
increased the risk is a question of fact for the jury . (See Luna v . V ela (2008) 169
Cal.App.4th 102, 1 12-1 13 [86 Cal.Rptr .3d 588] [and cases cited therein].)
For an instruction on primary assumption of risk applicable to coparticipants, see
CACI No. 470, Primary Assumption of Risk - Exception to
Nonliability - Coparticipant in Sport or Other Recreational Activity . For an
instruction applicable to coaches, instructors, or trainers, see CACI No. 471,
Primary Assumption of Risk - Exception to Nonliability - Instructors, T rainers, or
Coaches . For an instruction applicable to facilities owners and operators and to
event sponsors, see CACI No. 472, Primary Assumption of Risk - Exception to
Nonliability - Facilities Owners and Operators and Event Sponsors .
Sources and Authority
• “Primary assumption of risk cases often involve recreational activity , but the
doctrine also governs claims arising from inherent occupational hazards. The bar
against recovery in that context first developed as the ‘firefighter ’ s rule,’ which
precludes firefighters and police of ficers from suing members of the public for
the conduct that makes their employment necessary . After Knight , we have
viewed the firefighter ’ s rule ‘not . . . as a separate concept,’ but as a variant of
primary assumption of risk, ‘an illustration of when it is appropriate to find that
the defendant owes no duty of care.’ Whether a duty of care is owed in a
particular context depends on considerations of public policy , viewed in light of
the nature of the activity and the relationship of the parties to the activity .”
( Gr egory , supra , 59 Cal. 4th at pp. 1001-1002, internal citations omitted.)
• “The firefighter ’ s rule, upon which the [defendant] relies, and the analogous
veterinarian’ s rule, are examples of the primary assumption of risk doctrine
applied in the employment context.” ( Moor e v . W illiam Jessup University (2015)
243 Cal.App.4th 427, 435 [197 Cal.Rptr .3d 51].)
• “Our holding does not preclude liability in situations where caregivers are not
warned of a known risk, where defendants otherwise increase the level of risk
beyond that inherent in providing care, or where the cause of injury is unrelated
to the symptoms of [Alzheimers] disease.” ( Gr egory , supra , 59 Cal.4th at p.
• “[T]he principle of assumption of risk, which forms the theoretical basis for the
fireman’ s rule, is not applicable where a fireman’ s injuries are proximately
caused by his being misled as to the nature of the danger to be confronted.”
( Lipson v . Superior Court (1982) 31 Cal.3d 362, 371 [182 Cal. Rptr . 629, 644
• “The firefighter ’ s rule, however , is hedged about with exceptions. The firefighter
does not assume every risk of his or her occupation. The rule does not apply to
conduct other than that which necessitated the summoning of the firefighter or
police of ficer , and it does not apply to independent acts of misconduct that are
committed after the firefighter or police of ficer has arrived on the scene.”
( Neighbar ger v . Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal. Rptr .
NEGLIGENCE CACI No. 473
2d 630, 882 P .2d 347], internal citation omitted.)
• “W e have noted that the duty to avoid injuring others ‘normally extends to those
engaged in hazardous work.’ ‘W e have never held that the doctrine of
assumption of risk relieves all persons of a duty of care to workers engaged in a
hazardous occupation.’ However , the doctrine does apply in favor of those who
hire workers to handle a dangerous situation, in both the public and the private
sectors. Such a worker , ‘as a matter of fairness, should not be heard to complain
of the negligence that is the cause of his or her employment. [Citations.] In
ef fect, we have said it is unfair to charge the defendant with a duty of care to
prevent injury to the plaintif f arising from the very condition or hazard the
defendant has contracted with the plaintif f to remedy or confront.’ This rule
encourages the remediation of dangerous conditions, an important public policy .
Those who hire workers to manage a hazardous situation are sheltered from
liability for injuries that result from the risks that necessitated the employment.”
( Gr egory , supra , 59 Cal.4th at p. 1002, internal citations omitted.)
• “[A] person whose conduct precipitates the intervention of a police of ficer owes
no duty of care to the of ficer ‘with respect to the original negligence that caused
the of f icer ’ s intervention.’ ” ( Harry v . Ring the Alarm, LLC (2019) 34
Cal.App.5th 749, 759 [246 Cal.Rptr .3d 471].)
• “Because of the nature of the activity , caring for the mentally infirm, and the
relationship between the parties, patient and caregiver , mentally incompetent
patients should not owe a legal duty to protect caregivers from injuries suf fered
in attending to them. Here, the very basis of the relationship between plaintif f
and [defendant] was to protect [defendant] from harming either herself or
others.” ( Herrle v . Estate of Marshall (1996) 45 Cal.App.4th 1761, 1770 [53
Cal.Rptr .2d 713].)
Secondary Sources
6 W itkin, Summary of California Law (1 1th ed. 2017) T orts, § 1515
1 Levy et al., California T orts, Ch. 15, General Premises Liability , § 15.23
(Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence , § 380.173
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence , § 165.412 (Matthew
474-499. Reserved for Future Use
CACI No. 473 NEGLIGENCE
Page last reviewed May 2024
Kathryn Robb, National Director of the Children’s Justice Campaign at Enough Abuse, discusses Vice President Kamala Harris’s unusual mention of child sexual abuse during her Democratic National Convention speech and its broader implications for addressing this issue in America.
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