Hass suffered a cardiac arrest at the end of a charity half-marathon. Although CPR was promptly administered by other marathon participants, Hass died. His heirs sued the marathon’s promoter for wrongful death. The pre-race release that Hass had signed could not directly release the heirs’ wrongful death claim since that claim is separate from Hass’ own claim for personal injury and is a claim owned by his heirs, not him. However, a decedent’s express agreement to waive the defendant’s negligence and assume all risks does act as a complete defense to such a wrongful death action. Here, the pre-race release stated that Hass assumed all risks inherent in his participation in the event. This was sufficient to bar his heirs’ wrongful death claims. Furthermore, the release was not contrary to public policy on Tunkl grounds simply because it released the race promoter from claims arising from inadequate medical services rendered to marathon participants. Many sporting events may require the ancillary provision of first aid or emergency medical services by event organizers, but that fact alone does not change such pursuits into anything other than the voluntary leisure pastimes as to which enforceable releases may be given. However, the trial court erred in granting the race promoter summary judgment since there was a triable issue of fact as to whether it committed gross negligence that falls outside the permitted scope of a release. Gross negligence need not be specifically pleaded in the complaint as it is not a separate claim from ordinary negligence, just a heightened negligence standard. Following Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, this case holds that the doctrine of primary assumption of the risk does not bar a wrongful death suit by heirs of a participant in a half-marathon against the race promoter for failure to take adequate steps to provide emergency medical care for a participant suffering a cardiac arrest. Cardiac arrests are a known risk of marathon running. As a general rule, where an operator can take a measure that would increase safety and minimize the risks of the activity without also altering the nature of the activity, the operator is required to do so. Since the heirs raised a triable issue of fact as to whether the race promoter was grossly negligent in failing to provide medical care needed to assist runners who suffered cardiac arrests, the primary assumption of the risk doctrine did not bar their suit.
California Court of Appeal, First District, Division 4 (Reardon, J.); August 13, 2018; 2018 Cal. App. LEXIS 710