Assumption of Risk — ChecklistPosted: July 24, 2013
Your second best or maybe only defense to a lawsuit.
The second most important section in a release is the Assumption of Risk or Acknowledgement of Risk section. Assumption of the risk is the second defense when a defense of release is not available. This means if your state does not recognize release as a defense, you should have the best assumption of risk document you can create. See States that do not Support the Use of a Release.
Assumption of the risk may be the only defense you have for claims or injuries from minors. A minor is someone who is too young and therefore, legally unable to contract. See The age that minors become adults.
Assumption of the risk is also valuable in case your defense of release is thrown out for any reason. Your legal agreement, formerly your release, may still be able to prove your guest assumed the risk of their injury.
In some states, Assumption of Risk has been incorporated into Contributory Negligence. The overall effect is the similar. Do not allow the legal definitions to stop you from fully explaining the risks to your client.
To prove Assumption of Risk, you must prove your client knew and understood or appreciated the specific risk that caused the injury. Assumption or Risk includes everything your client hears, sees, or understood before undertaking the activity.
Remember these points when writing an Assumption of Risk section in a release or an A/R document.
- Your Assumption of Risk section should contain the worst-case scenarios for your operation and activities.
- Your Assumption of Risk section should contain the most common hazards, injuries, and risk of your activity no matter how minor.
Contact your insurance company for a list of the claims they have had over the past several years in your activity to determine what should be included in your Assumption of Risk language.
- Make sure your Assumption of Risk section includes all the risks of your activity.
Rafting includes side hikes. Rock climbing includes hikes to the site and debris falling from the cliff. Rope’s courses include group activities as well as high element activities. Overnight trips include sleeping in a tent or outdoors which may be a new experience and a new risk to your guests.
- Assumption of Risk must be stated from your client’s point of view. You understand the risks. Your clients do not.
- Be sure to incorporate a reference or the specific statutes in your state that affect your program. Examples would be covering specific statutes like the Colorado Equine Liability Act if you have horses in your program or the Colorado Ski Act if your program skis.
- Look for any videos that may explain the risk and incorporate those in your safety talk or post them to your site.
- Answer questions honestly about the risks. Never mislead a guest about the risks of the activity.
- Your guest must agree to assume the risk and must agree that they understand the risk.
- The more information you provide your guest the greater your chance of showing your guest assumed the risk.
Assumption of the risk is not the best defense; however, if it is or becomes your only defense, you will be glad you took the effort to work with your attorney to write the risks into your release.
For other articles about Assumption of the Risk See
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