For Protection under Assumption of Risk: Injured Party MUST Have Known the Risks!!!

By Doyice Cotten
5318155035_16dd5de3d8_mOne of the most commonly used defenses when someone is injured in a recreational activity is that the participant assumed the risks. While the law varies somewhat from state to state, it is generally an effective defense when the provider has not been negligent.

In a recent Pennsylvania case M.D. v. Ski Shawnee, Inc. (2015), a nine year old novice skier on an elementary school ski trip was injured when she collided with a snowmaking machine on the slope. She suffered an open left forearm fracture, a left open femoral shaft fracture, and facial lacerations.

The court discussed assumption of risk and Pennsylvania law in detail. Some of the most important quotes are listed below (with citations edited out).

Assumption of risk is based on the notion that, by taking the chance of injury from a known risk, the plaintiff has consented to relieve the defendant of its duty toward him. Assumption of risk thus depends upon subjective awareness of the defect, which can be proved ‘by circumstantial evidence sufficient to permit an inference that the plaintiff was aware [of] and understood the risk.’ To imply assumption of risk from the Plaintiff’s conduct, the conduct ‘must be such as fairly to indicate that the plaintiff is willing to take his chances.’ Whether the plaintiff knows of the existence of the risk and whether he appreciates its magnitude and unreasonable character are questions of fact to be determined by the jury. However, before the theory may be submitted to a jury, the defendant must produce evidence that the plaintiff fully understood the specific risk, and yet voluntarily chose to encounter it.

The court explained that Pennsylvania law (and the Second Restatement of Torts) breaks assumption of risk into four separate categories, or types. They are:

1. In its simplest form, assumption of risk means that the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk. The result is that the defendant, who would otherwise be under a duty to exercise such care, is relieved of that responsibility, and is no longer under any duty to protect the plaintiff.

2. A second, and closely related, meaning is that the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances. Thus a spectator entering a baseball park may be regarded as consenting that the players may proceed with the game without taking precautions to protect him from being hit by the ball. Again the legal result is that the defendant is relieved of his duty to the plaintiff.

3. In a third type of situation the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it. For example, an independent contractor who finds that he has been furnished by his employer with a machine which is in dangerous condition, and that the employer, after notice, has failed to repair it or to substitute another, may continue to work with the machine. He may not be negligent in doing so, since his decision may be an entirely reasonable one, because the risk is relatively slight in comparison with the utility of his own conduct; and he may even act with unusual caution because he is aware of the danger. The same policy of the common law which denies recovery to one who expressly consents to accept a risk will, however, prevent his recovery in such a case.

4. To be distinguished from these three situations is the fourth, in which the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible.

The court stressed that “Knowledge is the sine qua non of assumption of the risk. Thus, there can be no assumption of a risk where the risk is not known;” the court then quoted the Supreme Court of Pennsylvania:

It is axiomatic that appellant cannot be found to have implicitly assumed a risk of which he had no knowledge. Comment “b” [to Restatement § 496] states that the whole concept of implied assumption is based on the actor’s consent to accept the risk and look out for himself, which necessarily entails, according to comment “b”, that the actor understand the “nature, character, and extent of the danger in addition to the facts which create the danger” (comment “b”). The standard of knowledge applied under this section is subjective, which means that the trier of fact, in determining what knowledge appellant had, may consider his age, lack of information, experience, intelligence or judgment (comment “c”). We are concerned with what appellant actually knew, and not what the reasonable man should have known.

The M.D. court emphasized that at its core, assumption of risk mandates that:

[A] plaintiff who fully understands a risk of harm to himself or his things caused by the defendant’s conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily chooses to enter or remain, or to permit his things to enter or remain within the area of that risk, under circumstances that manifest his willingness to accept it, is not entitled to recover for harm within that risk.

Does M.D. Understand the Risk?

So, Ski Shawnee must convince the court that M.D. ( a nine year old girl, a novice on her first ski trip, having had 3 lessons at the resort), in addition to knowing and understanding the risks of skiing, also knew and understood the risks presented by the presence of a snow machine on the slopes.

Ski Shawnee was unable to accomplish that feat. The court denied Ski Shawnee’s motion for summary judgment for three reasons – one of which was

First, plaintiff’s lack of knowledge and appreciation of the risks associated with snowmaking equipment negates the possibility that she impliedly assumed the risk of colliding with such equipment. Even absent defendant’s concession that plaintiff had no knowledge of such risks, genuine issues of fact regarding plaintiff’s level of experience and knowledge preclude summary judgment.

What is Your Take-Away?

 1. First, realize that assumption of risk is a very effective defense.
2. Second, note that assumption of risk can protect you ONLY if the client is aware of the risks of the activity.
3. Realize that it is to your benefit to make certain clients know and understand the risks of the activity.
4. Realize that there are many ways to communicate these risks. Some of them include 1) Signage, 2) required videos for first time customers, 3) inclusion of the risks in the liability waiver, 4) verbal explanations to each client, and many more methods. Also, it is wise to utilize more than one method – for instance, require a video and include the risks in the waiver.

Photo Credit: Thanks to Rob Wall on Flickr.

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