Assumption of the risk is used to defeat a claim for injuries on a ropes course.Posted: April 4, 2011
Decision describes how a ropes (challenge) course is viewed by participants.
In this case, the plaintiff was in a treatment program for an addiction to prescription drugs. As part of the treatment program on day five she participated in a ropes course where she fell and was injured. She sued the hospital for her injuries. The defendant hospital used the defense of assumption of the risk.
In this case, the plaintiff had led an inactive lifestyle prior to entering the treatment program. When told of the ropes’ course she asked questions of the facilitator and other participants who had not participated in the ropes’ course.
The plaintiff was told that the course was designed to build trust and self-confidence. The group with the plaintiff was supposed to catch her if she fell on any part of the course. The plaintiff fell. The group did not catch her, and she suffered an injury to her knee.
The court stated under South Carolina law, to prevail on the defense of assumption of the risk, the defendant must prove the four elements of the defense:
(1) the plaintiff must have knowledge of the facts constituting a dangerous condition;
(2) the plaintiff must know the condition is dangerous;
(3) the plaintiff must appreciate the nature and extent of the danger; and
(4) the plaintiff must voluntarily expose himself to the danger.
The appellate court found the plaintiff assumed the risk of the activity which caused her injuries. She knew she could decline to participate because she had talked to two other patients who had declined. She knew the risk was of the other patients not catching her if she fell. Finally, the court found that she was the last one on the course, so she knew of the risk because she had watched other patients on the course.
This case is also doing a great job of showing how facts of an activity are interpreted by the court. Facts are told by the injured plaintiff to an attorney. The attorney investigates the claims and facts and discovers additional information from the defendant. That information along with the defendant’s version of the facts are then argued both in writing and sometimes orally in front of the court. Consequently, reviewing an appellate decision the facts stated by the court seem to have no relationship to how an activity or trip actually is run.
If you understand how a ropes, or challenge course works consider these statements by the court about the facts of the case.
A “ropes course” is an activity used to build trust and self-confidence. In the activity involved in this case, the participants walked across a rope strung between trees while holding onto an overhead wire. While one participant crosses the rope, four others follow on the ground, acting as spotters to catch the participant if he or she falls.
Katherine explained the course involved walking on a rope between three trees and that the activity would help Allison to build trust.
Katherine asked them to raise their hands and pledge to at least attempt the activity. The group warmed up with a game similar to tag.
Katherine asked her to at least try and assured her that if she fell, the group would catch her.
According to Allison, the purpose of the ropes course was to build trust and self-confidence. The object of the exercise was for the group to catch the participant as she fell, thereby building the participant’s trust in the group.
This is probably one of the best decisions I’ve ever seen where the court’s interpretation of what happened closely follows how the activity actually occurs. Nevertheless, even here you can see some discrepancies in what happens on the majority of courses every day.
1. Use a release. Relying on assumption of the risk is a risky defense. It is rare that a court will rule on assumption of risk on motions. Normally, that is something left to the decision of the jury.
2. Proving assumption of the risk is difficult. However, you should make assumption of the risk part of your defense. If for any reason your release is thrown out of the case, then assumption of the risk may be your best defense.
A. Incorporate assumption of the risk language in your release. You can then use the release to prove the plaintiff knew of the risks because she, or he read and signed the release.
B. Incorporate in your release, language that requires or that your guest acknowledge reviewing your website. Information on your website can show the risks and educate your guests of the risks.
C. Fully inform your guests of the risks of the activity. Safety talks, photographs and answering your guest’s questions can all assist in achieving this goal.
D. Ask the guest if they have previous experience in your activity. They may forget that they have rafted or climbed after they are injured. However, they are eager to tell or write down their experience prior to the trip. Experience in the activity or similar activities is proof of assumption of the risk.
Always be prepared for the court not to understand what you do. This may require that you bring in a video of your activity to explain to the court and the jury exactly what your activity is and why people enjoy it. This may also show what the actual risk is, rather than the death defying act the plaintiff may portray your activity as.
So Now What?
Make sure your information, your website, your brochure help educates your guests in the risks of the activity. Always have the defense of assumption of the risk available to use if necessary.
What do you think? Leave a comment.
Copyright 2010 Recreation Law (720) Edit Law, Recreation.Law@Gmail.com