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What is Assumption of the Risk and How Can it Affect My Case?

Assumption of the risk is a defense that is often used in negligence cases.

The defendant claims the plaintiff freely and knowingly engaged in an activity that any reasonable person should know could cause injury, and therefore the defendant should not be liable for any damages that result from the activity.

So, when you pay a company to provide equipment to you or guide you in an activity such as skydiving, and you are injured or killed when you hit the ground, the company probably will not be liable for your injuries because you understood the inherent risks of a dangerous activity like skydiving.

When Does Assumption of the Risk Apply?

Some activities where the assumption of the risk may prevent you from recovering damages include:

  • Skiing;
  • Skydiving;
  • Paragliding;
  • Scuba diving;
  • Horseback riding;
  • Whitewater rafting;
  • Amusement park rides; or
  • Rock climbing.

Even attending a sporting event can involve assumption of the risk.

In 1998, a woman was hit by a foul ball during a Boston Red Sox game. The impact pulverized bones in her face, and she had to have extensive reconstructive surgery. She sued the team, but a court ruled that she could not recover damages because the Red Sox "had no duty to warn the plaintiff of the obvious danger of a foul ball being hit into the stands."

Foul balls are an inherent risk of baseball, and any reasonable person would know that. Therefore, the plaintiff implicitly agreed to assume the risk by attending the game.

When Doesn't Assumption of the Risk Apply?

However, assumption of the risk is not a blanket exemption from liability.

The defendant may not be liable for the specific risk - for example, if you fracture your ankle in an otherwise normal parachute landing. On the other hand, if your parachute doesn't open because a company employee packed it wrong, they may be liable.

Injuries at Sports Stadiums

Back to the baseball stadium - while the team is not liable for the inherent risks of baseball, they can be held liable for injuries not directly related to the game. If you attend a ball game and your seat collapses, the team or stadium could be held liable. A dangerous seat is not the specific risk you assumed by attending a ball game.

Reckless Behavior by Athletes or Employees

Assumption of the risk also does not absolve a defendant for reckless behavior. If you are at a game, a player having a temper tantrum deliberately throws a bat into the stands, and it hits you, the player or the organization could be held liable.

Slip and Fall Accidents

Assumption of the risk does not ordinarily apply in slip and fall accidents. If you break your ankle after sliding on a slick grocery store floor, the business could be liable, especially if there was no sign warning of the slick spot.

Attractive Nuisances

If children are hurt while playing in a dangerous area, assumption of the risk (or trespass) may not apply.

In fact, if a property has something that children would naturally want to play on - a swingset, a woodpile, an abandoned car - the owner is legally obligated to take steps to prevent children from reaching it or to make it safe. Otherwise, it is known as an attractive nuisance, assumption of the risk would not apply, and the child can sue for damages.

Auto Accidents

Assumption of the risk does not apply to auto accidents unless the plaintiff was racing or engaging in some inherently dangerous activity in their car.

Got Axelrod?

If you have been injured because of another person's negligence, assumption of the risk may apply if you were engaging in an inherently dangerous activity. Schedule a free consultation with a Myrtle Beach personal injury lawyer on the Axelrod team today to find out if you have a case. Call us at (843) 916-9300 or fill out our contact form to set up a free initial consultation.

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Axelrod & Associates, P.A.
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