“Assuming the Risk” of a Hazardous Condition

Even if a land owner (or a person in possession or control of land) breaches a duty owed to a plaintiff, and the plaintiff suffers injuries, the land owner may escape liability if a legally recognized defense applies in a way that limits or eliminates the defendant’s responsibility for the harm.

Over the next couple of weeks, this blog will take a look at some of the defenses impacting land owners’ liability for defects and hazardous conditions, and when they may (or may not) apply.

IN SOME CIRCUMSTANCES, PLAINTIFFS “ASSUME THE RISK” OF INJURY

The defense of “Assumption of Risk” applies where a plaintiff chooses to participate in an inherently dangerous activity (or engage in inherently dangerous conduct) under appropriate circumstances.

Generally speaking, assumption of the risk requires:

1. An inherently dangerous situation, condition, or activity.

2. The plaintiff knew (or should have known) about the dangers. (NOte: the plaintiff needs to have the capacity to understand and make an informed decision about the dangers.)

3. The plaintiff chose to engage in the activity notwithstanding the risks.

“Assumption of the risk” represents a legal determination that a defendant’s duty of care may be eliminated where the plaintiff’s relationship to the defendant and understanding of the activity make it reasonable for the plaintiff to accept responsibility for the decision to participate in dangerous activities.

One common example of assumption of the risk is playing football. Football players understand that the way the game is played creates certain risks of injury (for example, a risk of concussion), and the player who elects to play organized football (for example, in the NFL) is deemed to accept the risk of certain types of injuries which commonly occur as a result of football-related activities. However, the players do not accept extraordinary risks – for example, the risk of being run over by a fan who drives a pickup truck onto a field, in violation of stadium rules.

THE DEFENDANT’S CONDUCT CAN IMPACT A PLAINTIFF’S ASSUMPTION OF RISK

In order for the assumption of risk defense to apply, the defendant cannot misrepresent the risks to the plaintiff or to others under circumstances where the plaintiff might rely on those misrepresentations. Also, the defendant cannot act in a way which increases the plaintiff’s risk beyond the risks the plaintiff has accepted.

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