Have you ever wondered why you sign a waiver before engaging in thrilling activities like rock climbing or skydiving? This is not merely a formality. It fulfills the legal function of the assumption of risk. By signing, you acknowledge that even in cases where the other person was negligent, you cannot sue them if you are injured while engaging in a risky activity. This rule is applicable if you believe you have acknowledged and understood the dangers involved. This can, therefore, adversely impact your capacity to pursue damages if you sustain injuries while engaging in such activities.

An Overview of Assumption of Risk

Under the law, people have a duty of care, which requires them to act reasonably and avoid causing predictable harm to others. However, there is an exemption to this principle: the assumption of risk.

There are two different types of assumptions of risk, and each has a different effect on the defendant's liability:

  1. Primary Assumption of Risk

This provides the defendant with a defense, releasing them from any obligations. This means the defendant has no duty of care to you because the law considers the behavior inherently dangerous. For example, falling is a known risk when skiing. A ski run injury would not give rise to a lawsuit against the resort unless there were exceptional circumstances like the resort failing to warn of potential dangers.

It is important to note that the assumption of risk principle was established in a 1992 court ruling in Knight v. Jewett. The ruling of the court expounded upon two essential facets of this defense.

The court reiterated that the basic assumption of risk is a complete defense. This implies that you might be unable to sue the defendant for damages if you knowingly engage in an activity that carries risks and are hurt due to those risks.

Furthermore, the court explicitly applied the theory to sports. In this instance, the injury occurred during a game of touch football. The court held that falling or being tackled are inevitable hazards of the game. The court determined that the defendant had no duty of care to prevent the damage as the plaintiff voluntarily engaged in the game, and the injury resulted from these inherent risks.

  1. Secondary Assumption of Risk

This theory lowers the possible damages you may be able to recover. In this case, the defendant owes you a duty of care, yet your willingness to engage in the hazardous activity lessens the defendant's liability. For example, even if you sign a release before rock climbing in the gym, the gym is still responsible for maintaining the equipment's safety. On the other hand, the gym may not be as liable for your injuries if you fall because of errors on your part.

Knight v. Jewett clarified the primary assumption of risk, indirectly opening the door for subsequent cases to refine the secondary assumption of risk.

The primary assumption of risk completely precludes the recovery of damages in cases where an activity's intrinsic risks cause an injury. On the other hand, the secondary assumption of risk comes into play when you engage in a risky action despite the defendant's breach of their duty of care. California's comparative fault statute comes into play in these scenarios.

The key distinction is how it affects your capacity to sue for damages. It does not necessarily follow that the secondary assumption of risk eliminates that ability. The jury, as the trier of facts (fact finder), assigns blame to each side. They consider your choice to continue participating despite the risk, balanced against the defendant's negligence. They then assign percentages of fault. These percentages form the basis on which the jury assigns damages.

Comparative Negligence

California courts apply pure comparative negligence to personal injury cases. This theory differs from contributory negligence. Contributory negligence prevents a plaintiff from receiving compensation if they are responsible for the disaster. On the other hand, pure comparative negligence takes an equal stance by allocating blame among all parties involved.

The court closely considers each party's actions or inactions during the incident to ascertain each party's degree of fault in the accident. This approach guarantees that the amount of liability fairly represents each party's involvement in the incident.

This system has various benefits. Unlike contributory negligence systems, which leave partially at-fault litigants without redress, it promotes fairness by allowing them to receive compensation. Furthermore, because pure comparative carelessness holds all parties accountable, it promotes safety. Awareness that even a small amount of fault may result in shared culpability encourages drivers to drive more cautiously.

Instances Where the Assumption of Risk Does Not Apply

Although it presents a significant hurdle for plaintiffs in personal injury cases, the assumption of risk has its limits. When the defendant's conduct creates dangers greater than those inherent in the activity, this is a significant exception.

The idea behind the principle is that you assume the risks associated with engaging in a risky activity when you voluntarily do so. On the other hand, the defendant violates their duty of care if they engage in illegal activities or take undue risks in addition to those that come with the activity. In these situations, the risks that the defendant added on top of those you assumed make them liable.

Suppose you are a skier and you have an accident on the hills. This risk comes with skiing, as you probably already know. However, things get complicated if the ski resort neglects to alert visitors to concealed dangers, like an icy patch. Beyond the inherent risks, the resort's failure to notify creates an undue risk. Although an assumption of risk would not completely prevent you from recovering damages, you would not have accepted the risk of coming into contact with an unmarked hazard.

Other environments may give rise to similar situations. For example, during a fight, a boxer always runs the risk of taking blows but not illegal strikes from their opponent. Similarly, a rock climber takes on the risk of falling but not the chance of the gym's defective equipment malfunctioning while they are up.

How is the Assumption of Risk Communicated?

The assumption of risk is either implied or expressly communicated.

An implied assumption of risk arises through participation in inherently risky activities. It is assumed that you are aware of and agree to the risk of injury associated with participating in activities like rock climbing, bungee jumping, or motorbike riding. Since the activity's very nature involves risk, there is not a written agreement. For example, participating in outdoor rock climbing requires you to know the inherent risk of falls.

On the other hand, an express assumption of risk refers to a precise and written commitment, usually expressed in a signed waiver. Under these waivers, you, the participant, voluntarily assume responsibility for any harm resulting from the inherent hazards of the activity, provided that the organizer behaves fairly and not carelessly. Two examples are a skier agreeing to a resort liability waiver or a race car driver understanding the risks of racing before a competition. Gyms could also require waivers admitting equipment dangers.

What Impact Does Signing a Liability Waiver Have?

It is typical to see liability waivers before participating in inherently risky activities. These documents limit the activity organizer's liability for harm by acting as a preemptive contract between you and the organizer.

In essence, a liability waiver asks you to absolve the event organizer of any responsibility for damage you sustain, but only in certain circumstances. Although the exact wording may differ, it usually addresses the dangers inherent to the activity. For example, a football waiver could include the danger of being tackled, but a ski resort waiver might cover falls. By signing the waiver, you agree to accept responsibility for these risks and to be aware of them.

Liability waivers may not always be enforceable. In a personal injury case, a signed waiver strengthens the defense of assumption of risk. Nonetheless, courts will carefully consider other facts, including:

  • Conscientiously (fairness) — Courts refuse unjustly biased agreements in favor of the organizer. The waiver should have a balanced and equitable risk allocation.
  • Clarity — The wording of the waiver is very important. Regarding the risks it covers, it must be precise and unambiguous. Excessively broad or vague waivers that try to cover every possible injury might not be enforceable.
  • Duress — The waiver may not be legal if you feel forced to sign. The signature on the waiver must be free from coercion and given voluntarily.

One important restriction on liability waivers is the type of conduct they do not cover. It is against the law for defendants to force you to give up your right to sue for activities that show a more serious disregard for your safety. Different legal classifications apply to these actions. They include:

Gross Negligence

Compared to basic negligence, gross negligence denotes a more serious level of carelessness. Gross negligence is evident when someone intentionally acts indifferent to the possibility of seriously hurting others and pays no attention to their safety.

An example is a skydiving instructor who neglects to properly fasten a harness or a ski resort that leaves a big, unmarked obstacle on a slope.

Waivers do not cover gross carelessness for two reasons: public policy and fairness.

Public policy concerns aim to avoid a scenario where waivers encourage putting profits ahead of people's safety. The organizers could be less inclined to take appropriate safety precautions if waivers could completely absolve them of responsibility.

On the other hand, with fairness, it is only fair to assume that a person who engages in a risky activity will not forfeit their legal right to sue for genuinely reckless acts. There are hazards associated with skydiving and skiing. However, these would not include an instructor breaking safety rules or a resort building a hazardous obstacle course.

Recklessness

Recklessness is behavior that shows a deliberate disregard for a known high risk of harm. Unlike negligence, where you might be unaware of a danger, recklessness involves you understanding the potential for serious injury but choosing to act anyway.

Examples of recklessness in these situations could include:

  • A race car driver going faster than the posted speed limit on a public road
  • The owner of a rock climbing gym neglects to maintain equipment even though they are aware of the possibility of accidents or
  • A whitewater rafting company leading a group down rapids that are too difficult for them

Intentional Torts

Intentionality is at the core of intentional torts, which sets them apart from carelessness or recklessness. Intentional torts, conversely, are defined by a conscious aim to cause injury or conduct with a high chance of causing harm, as opposed to circumstances involving unintentional mistakes or a disdain for risks.

These intentional actions can take many different forms, including:

  • Assault — It is an assault if an instructor threatens to force you off the plane before it is time. A waiver that addressed inherent hazards like gusts of wind or equipment failures would not apply to this.
  • Battery — A disclaimer intended for rapids-related risks would not apply if a whitewater rafting guide purposely bumps into another raft during a tour, resulting in harm.
  • False Imprisonment — False imprisonment occurs when a rock climbing gym owner puts you in a harness at a considerable height just to scare you. A waiver addressing possible falls or equipment failure would not apply to this forced confinement.

Waivers do not apply to intentional torts for obvious reasons. Liability waivers aim to reduce the defendant’s responsibility for preventable mishaps or accidental injuries. Intentional torts are not foreseeable by definition because they entail deliberate acts. Waivers covering them would effectively favor such detrimental activity, which is against public policy.

Take signing a waiver before going bowling as an example. The waiver could include coverage for unintentional injuries like misplacing a ball. However, it would not protect the bowling facility’s management if someone intentionally threw a ball at you. That would be considered an intentional tort, not an accident.

Notably, limitations extend beyond the conduct itself. A waiver cannot override the law, even if it attempts to cover anticipated negligence. A written waiver would not release the defendant from culpability if their activities violated the law and resulted in your injury. The law takes precedence over any waiver agreement.

Does An Assumption of Risk Apply in Premise Cases?

The assumption of risk can be a defense strategy in premises liability cases. These cases hold property owners or management responsible for injuries caused to guests due to their carelessness in maintaining a safe environment. However, it has its limitations.

To succeed, the property owner must meet a few requirements. He/she must show that you, the plaintiff, were aware of the risk and the possible consequences should the risks materialize. For example, a guest who knows about a broken bridge on a property but decides to cross it will probably not be able to use a lack of awareness as a defense.

Furthermore, the defendant has to prove you took the risk voluntarily. Despite being aware of the risk, you must have decided to enter the premises or participate in the activity. However, the property owner weakens this defense if he/she coerces you into taking on the risk.

Moreover, the risk taken must be a natural part of the activity and cannot result from the property owner's carelessness. A damaged step on a porch would be the product of the owner's neglect of the property, not a risk that comes with visiting a house. The assumption of risk would not apply in this situation.

There are two main reasons why the assumption of risk in premises liability has limited relevance.

  • Property owners must keep their surroundings relatively safe to fulfill their basic duty of care to guests. This entails removing potential risks or alerting guests to them. The assumption of the risk does not entirely absolve this fundamental obligation.
  • Even if a danger is obvious, the property owner may still be responsible for damages if they do not take reasonable precautions to reduce the risk or alert guests. This is especially true if the danger is not a natural part of the activity.

Trespassers, however, face a different circumstance. The assumption of risk refers to the conscious acceptance of a risk associated with engaging in legal activity or being on the property. Trespassers have no legal justification for being on the property. They do not voluntarily assume the risks associated with lawful use of the space since their very presence is unauthorized.

Find a Personal Injury Attorney Near Me

Assumption of risk poses a considerable challenge in personal injury lawsuits. Even though people are aware of the inherent risks involved in some pursuits, this understanding should not absolve careless people of responsibility.

We at Orange County Personal Injury Attorney will help you understand the intricacies of the assumption of risk. Our knowledge enables us to assess your case in depth and decide how relevant it is to your case. We will work hard to uphold your rights and address any carelessness that could have caused you harm. Accepting risks should not stop you from pursuing fair compensation.

For a consultation, call 714-876-1959. After this initial discussion, you will have a comprehensive grasp of your options and the next steps.