I agree with the analysis of the majority as to all issues except the conclusion that the judgment should be reversed because of the trial court’s failure to give an unrequested instruction as to secondary assumption of the risk. Before turning to that issue, however, I wish to expand somewhat on the reasons for which I concur in the conclusion that plaintiff Charlene Vine’s claim does not come within the scope of the Workers’ Compensation Act (the Act), Labor Code section 3200 et. seq.1
Plaintiff’s injury is not covered by workers’ compensation.
“The right to workers’ compensation benefits is wholly statutory. [Citations.] ‘This statutory right is exclusive of all other statutory and common law remedies, and substitutes a new system of rights and obligations for the common law rules governing liability of employers for injuries to their employees.’ ” (Northstar at Tahoe v. Workers’ Comp. Appeals Bd. (1996) 42 Cal.App.4th 1481, 1484 [50 Cal.Rptr.2d 475] (Northstar at Tahoe).) Labor Code section 3600 provides for workers’ compensation benefits where certain conditions of compensation are met. The conditions of compensation include, among other things, that “at the time of the injury, both the employer and the employee are subject to the compensation provisions of this division” and that “at the time of the injury, the employee is performing service growing out of and incidental to his or her employment and is acting within the course of his or her employment.” (§ 3600, subd. (a)(1) & (2).) Section 3600, *604subdivision (a)(9) provides further that an employee is entitled to compensation benefits “[w]here the injury does not arise out of voluntary participation in any off-duty recreational, social, or athletic activity not constituting part of the employee’s work-related duties, except where these activities are a reasonable expectancy of, or are expressly or impliedly required by, the employment.”
In 1974, the Colorado Supreme Court held that under similar statutory provisions an employee of a ski resort was acting within the course of his employment, and thus was entitled to compensation benefits, even though he was injured while skiing on his day off. (Dorsch v. Industrial Commission (1974) 185 Colo. 219 [523 P.2d 458].) The court reasoned that when an employer’s principal business is recreation, the proper test for determining whether the injured employee was in the course of employment requires consideration of “(1) the extent to which the employer derives substantial benefit from the policy—beyond the intangible value of improvement of employee morale; (2) the extent to which the recreational activity represents compensation for employment; (3) the extent to which the obligations of employment create the special danger which precipitates the injury; (4) whether the use of the recreational activity was an inducement for employment; (5) whether the use of the recreational facility was originally contemplated by the parties at the time of employment.” (Id. at pp. 222-223 [523 P.2d at p. 460].) Applying this test, the Dorsch court concluded that the employee was injured in the course of his employment because the employer used the ski pass as an incentive to attract employees to the ski area, the ski pass was a part of the employee’s remuneration, and finally, the use of the ski pass was contemplated by the parties from the beginning of the employment. (Id. at p. 223 [523 P.2d at p. 460].)
In order to avoid such an outcome under the California statute, the Legislature amended section 3352 by adding subdivision (f), which excludes from the definition of an employee subject to the provisions of the workers’ compensation law: “Any person employed by a ski lift operator to work at a snow ski area who is relieved of and not performing any prescribed duties, while participating in recreational activities on his or her own initiative.” (§ 3352, subd. (f); Northstar at Tahoe, supra, 42 Cal.App.4th at p. 1485, quoting from 3d reading analysis of Sen. Bill No. 548 (1975-1976 Reg. Sess.) [“ ‘According to the [bill’s] author, a recent Colorado Supreme Court decision granted worker compensation benefits to a ski resort bartender who was injured while skiing on his time off on his employer’s premises. Proponents of this legislation hope that it will prevent such an injury from being compensable also in California.’’ ”].)
As the majority indicates, the parties here submitted a joint pretrial motion, based on the undisputed facts recited in the majority opinion, requesting the *605trial court to determine whether plaintiff’s injury was covered by the workers’ compensation statute. Contrary to Bear Valley’s assertion, the stipulation that Vine was injured in the course of her employment does not necessarily establish workers’ compensation coverage. Section 3352 contains 14 exclusions from the broad definition of an employee in section 3351 that apply throughout the Act. (§ 3350.) Under section 3352, subdivision (f), a person such as Vine employed by a ski lift operator to work at a snow ski area is not an “employee” for purposes of the Act if at the time of the injury she was “relieved of and not performing any prescribed duties, while participating in recreational activities on . . . her own initiative.” It is clear that snowboarding was not among Vine’s prescribed job duties. Thus, there is no real dispute that she had been “relieved of and [was] not performing any prescribed duties” when she was injured. The more difficult question is whether her snowboarding at the employee party, when she was not helping at the bar, was participation in a recreational activity “on . . . her own initiative.”
While I agree with the majority that there is substantial evidence to support the trial court’s determination that Vine was snowboarding on her own initiative, I believe that this conclusion finds further support in cases addressing the applicability of section 3352, subdivision (f) and section 3600, subdivision (a)(9). In Northstar at Tahoe, supra, 42 Cal.App.4th at pages 1483-1485, the court found that a ski area employee injured while skiing on her day off was excluded as a covered employee by subdivision (f). As the employee was not required to be at the ski resort at all at the time of the injury, there was no dispute that she had been relieved of all prescribed duties and was skiing on her own initiative. (Northstar at Tahoe, at p. 1485.) On the other hand, in Lane v. Homewood Mountain Resort (Jan. 25, 2002, Cal. Workers’ Comp. App. Bd. No. SAC 301121), the Workers’ Compensation Appeals Board found that section 3352, subdivision (f), did not preclude recovery of workers’ compensation benefits where the employer had encouraged an employee to participate in a company-sponsored event in which she was injured. The plaintiff was injured while participating in a furniture race in which staff members from each department entered different vehicles made from furniture. The race was put on by the ski area, and the marketing department encouraged each department to enter a sled. The sleds were checked for safety by the employer, and the employer judged the competition. The race took place after the slopes had closed for the day, but the bar and restaurant were still open. The appeals board found that while prior to the start of the race plaintiff had finished work for thd day, she was not engaging in the recreational activity on “her own initiative” because of her employer’s encouragement and participation in the event.
Non-ski-related cases turning on the meaning of section 3600, subdivision (a)(9), provide some additional guidance. Although section 3352 was not at issue in these cases, coverage for the injuries sustained during off-duty *606recreational activities turned in these cases on whether the activities were “expressly or impliedly required by . . . the employment” under section 3600, subdivision (a)(9). In Smith v. Workers’ Comp. Appeals Bd. (1987) 191 Cal.App.3d 127, 141-142 [236 Cal.Rptr. 248] (Smith), the court held that a high school math teacher who died in a windsurfing accident while at a school picnic was entitled to benefits because his attendance at the off-campus math club picnic was an implied requirement of his employment. The court held that “[b]ecause attendance at the picnic was an implied requirement of decedent’s employment, his accident which resulted from his engaging in the recreational activities which were part and parcel of the picnic’s ‘entertainment’ is causally connected to his employment.” (Id. at p. 142.) Similarly, in Ezzy v. Workers’ Comp. Appeals Bd. (1983) 146 Cal.App.3d 252, 263 [194 Cal.Rptr. 90], the court held that a part-time student law clerk injured at a law-firm sponsored softball game was entitled to workers’ compensation benefits where “it was reasonable for [her] to feel that she was expected to participate.” In contrast, in Todd v. Workers’ Comp. Appeals Bd. (1988) 198 Cal.App.3d 757, 760 [243 Cal.Rptr. 925] (Todd), the court held that an employee injured while playing basketball on his employer’s property during his lunch break was not entitled under section 3600, subdivision (a)(9) to workers’ compensation benefits. The court reasoned that “[although the employer apparently condoned the playing of basketball on the premises, there was no evidence that the employer required, encouraged, or sponsored the recreational activity.” (Todd, supra, 198 Cal.App.3d at p. 760; see also Mason v. Lake Dolores Group (2004) 117 Cal.App.4th 822, 838 [11 Cal.Rptr.3d 914].)
Here, it is undisputed that Vine was asked by Eric Bottomley, the vice-president of operations for Bear Valley, to attend the employee party and to help out at the bar during the party. The parties stipulated that Vine was providing “working assistance” before she was injured. Thus, her attendance at the party could well be considered an implied requirement of her employment—she did not attend the party entirely on her own initiative. However, there was no requirement that she go snowboarding when she finished at the bar. Bear Valley argues that snowboarding was the entertainment for the party, just as windsurfing was the entertainment for the picnic in Smith, supra, 191 Cal.App.3d 127, but there is a significant difference between these two cases. In Smith, the teacher’s obligation at the picnic was to participate in the extracurricular activities, presumably to develop a relationship with the students as well as to provide supervision. Thus, the teacher’s participation in the activity was an implied requirement of his employment. Here, however, Vine’s work-related obligation was to help serve beer at the bar. In no way did her implicit obligations extend to snowboarding. In this respect, this case is more similar to Northstar at Tahoe, supra, 42 Cal.App.4th 1481, and particularly to Todd, supra, 198 Cal.App.3d 757. Although Bear Valley *607obviously provided the facilities that enabled her to snowboard, it did not expressly or impliedly require her to engage in that activity. The intent behind section 3600, subdivision (a)(9) “was to eliminate from workers’ compensation coverage injuries sustained during recreational, social, or athletic activities which are only remotely work-related.” (Todd, supra, 198 Cal.App.3d at p. 759.) As seen above, section 3352, subdivision (f) was added to strengthen this limitation and to ensure that no exception was made for persons working at snow ski areas. Accordingly, because Vine was not performing work-related duties and chose to go snowboarding on her own initiative, the trial court correctly determined that she is not entitled to workers’ compensation benefits for the injury she sustained, and therefore that she is entitled to maintain this action.
The jury instructions were not prejudicially erroneous.
The issue that was presented to the jury in this case was whether Vine was injured because of the “open and obvious” risks of snowboard jumping, or because Bear Valley negligently created a jump that unreasonably increased the risks over and above those that were apparent to snowboarders and inherent in the sport. The jury was instructed that “plaintiff seeks to recover damages based upon a claim of negligence,” and the special verdict asked the jury to determine whether defendant was “negligent in the design, construction, testing, or supervision of the snow board jump on which plaintiff was injured.”
Vine presented three expert witnesses who testified that the jump was unreasonably unsafe and substantially increased the risk of injury inherent in the sport and apparent to the average snowboarder. One expert explained that the jump was designed in a manner that resulted in excessive landing force, in violation of snowboard jump standards issued by the United States Ski and Snowboard Association (USSSA) and similar Canadian standards. Another concluded, “[T]he jump that [Vine] took was not a safe jump, that it was unsafe, and it subjected her to a equivalent impact height of about 12 feet. . . the same as if she had fallen directly down onto a flat surface from a height of 12 feet.” The jump was designed with a concavity that increased the velocity of the snowboarder and the force upon impact; if the jump had been rounded rather than concave, Vine would have sustained an equivalent impact height of only one and one-half feet from her jump. Under USSSA standards, the maximum equivalent impact height is five feet, and under Canadian standards the equivalent is two and a half feet. In his closing argument, Vine’s attorney argued, “This was a bad jump. Instead of taking the usual day and a half to build a jump, Mr. Murphy built the jump in about somewhere around an hour, hour and a half, something like that, [f] A jump that’s properly designed is supposed to be that you can land anywhere on it without *608sustaining unnecessarily high equivalent impact forces, unnecessarily high forces upon landing.” He detailed how his expert witnesses had testified the jump did not comply with industry standards and why these deviations made the jump unsafe. Based on this evidence he argued that the jury should find that the jump was negligently designed. He also argued that Bear Valley was negligent in testing the jump because Murphy failed to test it as is required under industry standards, and failed to provide supervision because the ski patrol did not inspect the jump and was not even on the hill at the time of the injury. Bear Valley’s evidence was to the contrary. Its witnesses testified that the jump on which Vine was injured was typical of snowboard jumps and could not have been designed to eliminate the risk of injury.
Throughout the course of proceedings in the trial court, defense counsel repeatedly urged the court to instruct the jury on primary assumption of the risk.2 Bear Valley’s first contention on appeal as to why the trial court prejudicially erred in giving the instructions it did is that it refused to give a primary assumption of risk instruction. The trial court refused to give such an instruction because, under Knight v. Jewett (1992) 3 Cal.4th 296, 313 [11 Cal.Rptr.2d 2, 834 R2d 696] (Knight) and its progeny (e.g., Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003-1004 [4 Cal.Rptr.3d 103, 75 P.3d 30]), primary assumption of risk is a question for the court and not for the jury, as the majority recognizes (maj. opn., ante, at p. 592). The court, not the jury, determines the duty that a defendant owes to the plaintiff, and the jury determines whether the defendant breached that duty. As Knight and many other cases make clear, a participant in a sporting activity such as snowboarding accepts the risks inherent in the sport as a matter of law—that is the primary assumption of risk and presents no question for the jury to determine. (Knight, supra, 3 Cal.4th at p. 313.) Here, the trial court determined that Bear Valley was under a duty not to increase the risks beyond those that are inherent in snowboarding. As the matter was submitted to the jury, Bear Valley was liable only if the jury found that Bear Valley had increased those risks by negligently designing and constructing a jump that was more dangerous than it appeared to be.
*609The instructions that Bear Valley proffered on the subject of primary assumption of the risk stated the correct rule of law. It is unquestionably correct that a defendant has no duty to eliminate or reduce “inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted.” It is also unquestionably true that nothing in the court’s instructions, the arguments of counsel, or anything else that was said during the course of trial suggested that there is such a duty. While it would have been advisable for the court to have explicitly told the jury that defendant’s only obligation was “not to increase the risks to a snowboarder over and above those inherent in the sport,” this premise was made plain in the opening statements of counsel,3 in the testimony of the experts, and in closing argument.4 As the majority states, “[tjhere was no dispute at trial that snowboarding is a very risky sport” (maj. opn., ante, at p. 601) and there was never the slightest suggestion that Bear Valley was liable for Vine’s injuries if those injuries were caused by the risks inherent in snowboarding. Contrary to the statement in the majority opinion, the jury was not told to apply the ordinary standard of care “even if Bear Valley’s conduct conformed to the standards customary in the ski resort industry.” (Maj. opn., ante, at p. 596.)5 The jury was told that Bear Valley
•» : <r *610was liable only if it was negligent and it was asked to determine whether Bear Valley was “negligent in the design, construction, testing or supervision” of the jump on which Vine was injured. Vine’s contention throughout was that the jump was negligently designed and constructed because it gave rise to excessive landing forces that were not apparent and not normally encountered in snowboarding. Based on the conflicting evidence, that is what the jury found. There is no basis to suppose that the verdict would have been different if the instructions had restated what was implicit throughout the trial.
The second reason Bear Valley contends that the instructions were erroneous is that the trial court refused to instruct on the obvious hazard doctrine. In view of the theory on which Vine relied at trial, the majority correctly rejects this contention. (Maj. opn., ante, at p. 598, fh. 11; see also, e.g., Felmlee v. Falcon Cable TV (1995) 36 Cal.App.4th 1032, 1040 [43 Cal.Rptr.2d 158]; Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 114—122 [273 Cal.Rptr. 457].)
Bear Valley’s final attack on the instructions is the trial court’s failure to give an instruction on secondary assumption of risk. According to Knight, supra, 3 Cal.4th at page 315, secondary assumption of risk “is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties.” In discussing the issue with the trial judge, defense counsel agreed that secondary assumption of the risk “is encompassed by comparative negligence” and “is a component of the comparative elements.” He argued that the jury should be told that Vine assumed responsibility for the inherent risks of snowboarding only in connection with his argument that the jury should be instructed on primary assumption of the risk.
Opposing counsel were in essential agreement as to what needed to be shown to establish secondary assumption of the risk. As Vine’s attorney presented the matter to the court, to establish secondary assumption of the risk, Bear Valley “would have to prove it is actually a type of comparative negligence actually. In other words, the plaintiff was negligent in recognizing a risk and [accepted] bringing herself to that risk. [][]... [|] Secondary assumption of risk, I think defendants could still show .... [i]f the defendants say this jump does, in fact, increase the risks inherent in the sport, however, *611plaintiff you knew that. You saw the way this jump was designed. You knew that there was a risk of getting injured that was not necessary to the sport, and you nonetheless took the jump, that would be secondary assumption of risk.” Defense counsel agreed: “There still remains this component which I think [plaintiff’s counsel] did a pretty good job of explaining to the court which is the secondary assumption of risk which is a subjective-based analysis, and that is in the comparative negligence environment, [f] . . . H] ... It is the comparative negligence determination, was the plaintiff contributorily negligent. I say, Your Honor, we’ve submitted jury instructions on the question of comparative negligence which includes the secondary assumption of risk analysis because, again, [plaintiff’s counsel] is correct when he says, this is an analysis that we get inside Ms. Vine’s head, and we find out what she knew, what she appreciated, what she understood, and her willingness to venture forth, in light of, or with knowingly venturing forth and taking the jump in spite of her knowledge and appreciation of the risk she is exposed to. That’s the secondary assumption of risk, and he is correct again. It is a comparative analysis. The jury can ascribe any level or percentage of comparative to the plaintiff they choose to.”
Bear Valley did offer two proposed instructions on the subject of secondary assumption of risk.6 However, there was no basis in the evidence for either instruction. The proposed instruction upon which Bear Valley ultimately relied stated that in determining the plaintiff’s comparative negligence, the jury should consider “plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach” and failure to avert a known “risk of harm created by a defendant’s breach of duty.” (Italics added.) There was no evidence that Vine was told or perceived the additional risk that was created by the negligent configuration of the jump. To the contrary, Vine testified unequivocally that she had not observed anything unusual about the jump other than its length and all of her evidence was to the effect that the additional landing forces that were created by the jump were not apparent to *612the normal snowboarder. Bear Valley offered no evidence suggesting otherwise.7 Its position was that there was nothing unusual about the jump. It would have been error to have given such an instruction that was not supported by evidence in the record. (LeMons v. Regents of University of California (1978) 21 Cal.3d 869, 875 [148 Cal. Rptr. 355, 582 P.2d 946] [error to have given contributory negligence instruction for which there was no evidence in the record].)
In concluding that Knight requires a “plaintiff’s encounter with the risk [to] be ‘knowing’ only in the general sense that the plaintiff understood the nature of the risk involved” (maj. opn., ante, at p. 599), the majority opinion correctly states that “[i]t is the risk that must be appreciated by a plaintiff for the assumption of risk doctrine to come into play, not the defendant’s breach of duty” (maj. opn., ante, at p. 598). But this statement begs the question. The question is, the risk of what? Knight repeatedly makes clear that “in the assumption of risk context, it would be improper to impose all responsibility on a plaintiff who is aware of a risk of harm created by the defendant’s breach of duty . . . .” (Knight, 3 Cal.4th at pp. 310-311, italics deleted and added.) Again, “In cases involving ‘secondary assumption of risk’—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty—the doctrine is merged into the comparative fault scheme . . . .” (Id. at p. 315, italics added.) Bear Valley’s proposed instruction would have been proper if there were any evidence that Vine had been aware that the jump in question produced greater landing forces than usual and nonetheless decided to take the jump. As the majority opinion acknowledges (maj. opn., ante, at p. 598), there was no such evidence. In order for such an instruction to have been applicable, there was no need for evidence that Vine was aware there had been negligence in the design or construction of the jump or for evidence that she was aware of the precise degree to which the risks had been increased by the defendant’s negligence. But she did need to be aware that the conditions she was voluntarily encountering differed from those ordinarily encountered and inherent in the particular sporting activity. She needed to be aware of more than the normal risks of snowboard jumping or, as the majority opinion puts it, of “the risk of injuring herself in a fall on the snow.” (Maj. opn., ante, at p. 599.)
*613To use the hypothetical employed by the majority, we may assume Bear Valley owed a duty to all snowboarders not to conceal a spike in the landing area of the jump. If a particular snowboarder knows there is a concealed spike in the landing area and nonetheless takes the jump, the snowboarder may assume some responsibility for being injured on the spike by virtue of secondary assumption of the risk, incorporated into the element of comparative negligence. (See, e.g., Knight, supra, 3 Cal.4th at pp. 314—315, citing Kirk v. Washington State University (1987) 109 Wn.2d 448 [746 P.2d 285, 290-291] and Diamond, Assumption of Risk After Comparative Negligence; Integrating Contract Theory into Tort Doctrine (1991) 52 Ohio St. L.J. 717, 748-749.) The snowboarder need not be aware of the percentage by which the hidden spike increases the risk of injury in order to assume that increased risk, but if there is no evidence that the snowboarder knows of the spike, she does not assume that risk, and it would be error for the court to give the assumption of risk, or comparative negligence, instruction. (See LeMons v. Regents of University of California, supra, 21 Cal.3d at p. 875.)
Bear Valley contends that the judgment should be reversed because the trial court failed to give an instruction that Bear Valley never proposed. Under Knight, a plaintiff may be charged with comparative responsibility for engaging in a risky activity even if doing so was not unreasonable (Knight, supra, 3 Cal.4th at p. 314) and the comparative negligence instruction that the trial court gave did not say so. However, Bear Valley never asked the trial court to say so. Indeed, when asked by the trial judge why the BAJI instruction on comparative negligence was not sufficient, Bear Valley’s counsel responded, “I think [Bear Valley’s proposed instruction is] important and an accurate assessment of the law since the Knight case, that helps to explain what is plaintiff’s potential negligence in this context. A knowing encounter with a risk of injury caused by the defendant’s breach in this sports environment here is—is comparative negligence.” (Italics added.) Never did defense counsel ask the trial court to instruct the jury that plaintiff could be held partially responsible for her injury because she took a risky jump even if she was not negligent in doing so.8 On appeal, Bear Valley has discerned a subtle point from a close reading of Knight that was never suggested in the trial court. Because there is no suggestion that the instructions that the trial court did give on comparative negligence misstated the law, the trial court’s *614failure to give such a clarifying instruction that was not requested may not form the basis for reversal of the judgment. (Agarwal v. Johnson (1979) 25 Cal.3d 932, 948 [160 Cal.Rptr. 141, 603 P.2d 58], overruled on different ground in White v. Ultramar (1999) 21 Cal.4th 563, 574, fn. 4 [88 Cal.Rptr.2d 19, 981 P.2d 944] [“It is settled that a party may not complain on appeal that an instruction correct in law is too general or incomplete unless he had requested an additional or qualifying instruction”]; Suman v. BMW of North America, Inc. (1994) 23 Cal.App.4th 1, 9 [28 Cal.Rptr.2d 133] [“When a trial court gives a jury instruction which is correct as far as it goes but which is too general or is incomplete for the state of the evidence, a failure to request an additional or a qualifying instruction will waive a party’s right to later complain on appeal about the instruction which was given”].)
Moreover, the trial judge’s failure to have made this unrequested clarification resulted in no prejudice. The jury was instructed on the subject of comparative negligence and attributed 54.4 percent of the responsibility for Vine’s injuries to Vine herself. There was no basis on which the jury could have done so other than by finding Vine responsible for having accepted the risks inherent in snowboard jumping. One of Vine’s own experts testified that Vine was “not experienced enough” to have taken the “very big jump” on which she was injured. Vine herself acknowledged that she had considered whether to take a jump bigger than any she had ever done before. The jury must have concluded that Vine bore the major portion of responsibility for her accident by having decided to take that risk. By attributing 54.4 percent of the responsibility for her injury to Vine, the jury necessarily held her responsible for the consequences of taking a risky jump which she failed to execute properly.
The majority suggests that the jury’s attribution of comparative negligence to Vine was “easily correlated with Vine’s failure, despite her considerable snowboarding experience, to properly execute the fundamental jumping techniques” (maj. opn. ante, at p. 602), and that the jury might have attributed a still greater percentage of responsibility to her if it had been told that it could also consider the very riskiness of the activity without regard to fault. The evidence was undisputed that Vine’s weight was not forward and that her body positioning was not as it should have been when she approached the jump. However, the defense did not argue that Vine’s failure to execute the jump properly constituted negligence on her part. Bear Valley contended that the risk of not approaching a jump correctly is part of the inherent risk of snowboarding, not that a snowboarder who makes a poor jump is unreasonable or negligent. In his opening statement, defense counsel told the jury, “A fundamental risk [of snowboard jumping] is loss of body control. And that doesn’t require any subjective knowledge on anybody’s part, it is just a base element. The nature of the activity is aerial jumping, and if you can’t eliminate loss of body control, then it is an essential risk in the activity. And I *615think that the evidence will show that that’s what happened here.” The substantial proportion of responsibility that the jury attributed to Vine was not based on the determination that she was negligent in failing to execute a better jump, but that she was responsible because she assumed the risk that she might not take the jump correctly.
Bear Valley contended that the manner in which Vine took the jump went to the issue of causation. It argued that Vine’s injuries were not caused by any negligence in the design or construction of the jump but by the poor form with which Vine took the jump. The jury undoubtedly considered Vine’s faulty technique in determining her proportionate responsibility in causing her injury, and it did so despite the fact there was never any suggestion that Vine acted unreasonably or that her poor form constituted negligence. Since the jury could have considered Vine’s contribution to the causation of her injury only after determining that she was for some reason at fault, the jury must have placed responsibility on her for having assumed the risk of taking the snowboard jump.
The majority opinion posits the possibility that the jury attributed fault to Vine based on her improper snowboarding technique. However, as just indicated, the defense never argued that the jury should do so. The suggestion that the jury nonetheless may have considered Vine’s poor form to constitute negligence not only is entirely speculative, but disregards the fact that Bear Valley did argue that Vine’s poor technique showed simply why Vine’s injury was not caused by the configuration of the jump. And, as the majority opinion acknowledges (maj. opn., ante, at p. 601), in his closing argument Vine’s attorney did attempt to convince the jury that it should not attribute negligence to Vine because she attempted a jump that she should have known was beyond her ability. Vine’s attorney did not argue that this was an inappropriate factor for the jury to consider or suggest that if Vine was injured as the result of taking a jump that was beyond her ability she bore no responsibility for doing so. If under the trial court’s instructions the jury found that Vine was negligent in attempting the jump with its inherent risk, as it apparently did, there would have been no reason for it to have increased the apportionment of fault to her if it had been told that she was responsible for taking that same risk even if she were not negligent in doing so.
Thus, there is absolutely no reason to believe that the result in this case would have been different if the jury had been told that Vine could be contributorily responsible for her injury even if she acted reasonably. The verdict plainly reflects that the jury understood this to be the case—which *616perhaps is why Bear Valley never asked the trial court to give such an explicit instruction. In all events, no prejudice resulted from the trial court’s failure to instruct more fully on the subject in a manner that was never requested by either party.
A petition for a rehearing was denied June 3, 2004, and respondent’s petition for review by the Supreme Court was denied August 25, 2004. Kennard, J., Werdegar, J., and Chin, J., were of the opinion that the petition should be granted.
All statutory references are to the Labor Code unless otherwise indicated.
Bear Valley proffered an instruction entitled “No Duty to Protect Against Inherent Risks of a Sport (Primary Assumption of Risk),” which read as follows: “The defendant has no duty to eliminate, reduce or make safer the inherent risks of injury which arise from the nature of the sport of recreational snowboard jumping or the manner in which it is conducted. An inherent risk of a sport is one that cannot be eliminated without fundamentally changing the nature of the sport or chilling vigorous participation in the sport, [f] The defendant is under a duty to use ordinary care not to increase the risks to a snowboarder over and above those inherent in the sport. The defendant is under a duty to refrain from constructing a jump for use by the public which, by design, poses an extreme risk of injury. [][] A failure to fulfill such duty is negligence.”
In his opening statement, Vine’s attorney told the jury, “The question that you are going to be asked to decide is: Once Bear Valley changed that jump, did they take a jump that was safe and turn it into one that was dangerous . . . .” In his opening statement, Bear Valley’s attorney told the jury the evidence would show that “[t]he configuration of this jump and the risks of injury that it presented were open and obvious to all, including Ms. Vine, and that any snow configuration that you craft out there on the mountain . . . you can’t eliminate the risk of injury from somebody who loses their body control, and in particular when they land upside down on their back and their shoulders and their neck. You can’t eliminate that.”
For example, Bear Valley’s attorney argued in closing that Vine had “not satisfied the preponderance of the evidence that it’s more likely than not that the jump here created an excessive risk of injury as opposed to what we have to understand in this same situation is a risk of injury from anybody who falls on a jump. [][]... [j[] So we contend that the jump by its design and by the evidence of its actual use and testimony we’ve heard presented only the usual or expected risks associated with the aerial jumping that was taking place. That’s what we contend.” In rebuttal, Vine’s attorney argued, “Charlene Vine’s equivalent impact of 12 feet broke her back.... [A] properly designed jump would have subjected Charlene Vine to impact forces less than 3.7 feet at the point of which she landed, and if this jump was properly designed, regardless of whether she landed on her feet or on her back, she would not have been injured. HD • - - ISO This jump was a bad jump. There is no question about that.”
The jury was instructed that negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do “under circumstances similar to those shown by the evidence,” and that, although not necessarily controlling, evidence “as to whether a person conformed or did not conform to a custom that had grown up in a given locality or business is relevant and ought to be considered” in determining whether the person was negligent. At no point in the trial did anyone ever imply that Bear Valley was liable simply because it is foreseeable that injury may result from snowboard jumping. Indeed, the final argument of Vine’s counsel, which the majority believes to have been “legally erroneous” (maj. opn., ante, at p. 603), emphasized that Bear Valley was liable if it was foreseeable that somebody would be injured by a “screwup,” *610(italics added) not by the normal risks of snowboarding. By the end of the trial, there could not have been the slightest misunderstanding on anybody’s part that by a “screwup,” counsel meant constructing a jump that produced far greater landing forces than normally encountered and reasonably anticipated by most snowboarders.
After submitting a lengthier proposed instruction entitled “Comparative Negligence/Secondary Assumption of Risk,” which included the statement that “A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury,” Bear Valley submitted an alternative instruction labeled “Comparative Negligence.” That proposed instruction read, “If you find that defendant breached its duty of care to plaintiff, plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach, if any, is to be considered by you in determining the plaintiff’s comparative negligence or fault. A person who is aware of a risk of harm created by a defendant’s breach of duty but fails to avert the harm is comparatively negligent for the injury, [f] You should consider all of the surrounding circumstances established by the evidence, including, but not limited to, the plaintiff’s maturity, intelligence, experience and capacity, along with all the other surrounding circumstances as shown by the evidence.”
Indeed, when asked, “When you looked at this jump, you didn’t see anything that was particularly hazardous about it; is that right?” Chris Gunnarson, one of the defendant’s experts, confirmed, “That’s correct.” Vine was aware of, and acknowledged, the normal risks of snowboard jumping, but there is no evidence that she was aware of the increased risks created by the negligent manner in which the jury found the jump in question to have been designed and constructed.
Indeed, defense counsel suggested that his initial proposed instruction might be modified by inserting “if any” after the phrase “plaintiff’s knowing encounter with a risk of injury caused by defendant’s breach,” but he never suggested that the instruction be revised to tell the jury it might consider plaintiff’s knowing encounter with the risks inherent in snowboarding regardless of negligence.