Instead, I filed a demurrer to the Complaint, claiming it did not state any facts sufficient for a cause of action based upon assumption of the risk. Their are numerous cases involving sports injuries, including one almost identical to that involving my son, so I was on sound footing to fight the case. Sure enough, the lawsuit was thrown out, and I became a hero, if only in the eyes of my son. As a bit of legal history, the doctrine of assumption of the risk existed from the days of English common law. It had been anesthetized for a while in many jurisdictions, including California, having been replaced by what is known as comparative or contributory negligence.
States differ on the application of contributory negligence.
For instance, some states allow that once a defendant is found to be at fault, any contributory negligence on the part of a plaintiff will bar the entire suit. States such as California allow that a plaintiff's award in a negligence action will be diminished by the amount of his own comparative negligence. With this type of law in place, assumption of the risk no longer acted as a complete bar to a lawsuit, having been replaced with the kinder and gentler notion of comparative negligence. But things have changed over the last several years, and assumption of the risk is back with a vengeance. Most notably found to apply in sporting events, such as football, hockey, horseback riding, sky diving, scuba diving, etc.