Assumption of Risk

Posted on June 25, 2008 by Jason Fernandez

Assumption of Risk

About every 6 months or so, I get the itch to do something adventurous. Recently, I investigated skydiving. After doing some amateur sleuthing into the requirements, etc., I noticed that in order to tempt the forces of gravity, I needed to sign a Waiver of Liability form. In essence, the waiver said: “If you are injured, we will not be responsible. If you die, we will not be responsible. You indemnify the company from any and all liability.” As a personal injury attorney, the giant, bright purple neon sign that reads “DANGER” began blinking in my mind’s eye.
In truth, many businesses that offer such high-risk adventures try to protect themselves from liability for injuries by getting customers to sign liability waivers. These provisions are extremely common for recreational activities that involve a higher-than-normal risk of injury, including: skiing, cycling, skating, bungee jumping, etc.
Without question, some of these activities are inherently dangerous. Throwing myself off a bridge hoping that a single strip of rubber will prevent me from injury is undoubtedly ripe with risk, regardless of how safe the activity’s track record might be. The inherent danger in these activities has an important legal effect – the application of the doctrine of assumption of risk
A person who knowingly engages in an activity is deemed to have accepted all of the risks of injury inherent to that activity. The negligent party will escape liability if the injury occurred in a manner that is inherent to the nature of the activity. The assumption of risk doctrine is an available defense in Maryland, DC, and Virginia.
The law does draw a distinction between express and implied assumption of risk. Express assumption of risk exists when, by contract or the like, a person agrees to accept risk (like in the skydiving example above). Implied assumption exists when the law implies a voluntary acceptance of an activity’s risk by looking to the person’s behavior, as opposed to some explicit agreement. As such, even without a written waiver or acceptance, a person can assume the risk and lose the right to recover for injuries. For example, choosing to attend a Nationals game may lead a court to determine that the plaintiff assumed the risk of being hit by a foul ball, if sitting in an area where such a risk is reasonable.
An express agreement that acknowledges risk and waives liability can also be overturned in extreme cases – if contrary to public policy. A property owner or manager who fails to take reasonable measures to prevent common, obvious injuries could be held liable. The best example is the nets behind home plate at a baseball stadium. Because foul balls in that area are such an obvious danger for people, it would be negligent if the stadium did not have them, regardless of any assumption of risk. Courts seek to prevent reckless owners from avoiding responsibility by using waivers of liability. This creates an incentive for property owners and managers to keep the property and/or equipment in good, safe condition for others.
Nevertheless, the assumption of risk doctrine is an important consideration when evaluating an accident. The doctrine seriously hampers most weather-related slip-and-fall accidents. The courts have consistently held that if a person chooses to walk, ride, etc., in bad conditions, they accept the risk of being injured. This is a topic the blog previously explored when I fell down the Metro escalator. Don’t worry...I’m fine now. Even pride heals.

To learn more about premises liability issues, please see our website at G&B website and click on premises liability.

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