Assumption of the Risk

Assumption of the risk is defined as someone knowing and understanding the risks of the activity that injured them.

Every state has slightly different definitions of assumption of risk. In general, prior to the guest becoming injured, the guest must comprehend the risks of the activity. The comprehension must include not only the knowledge of the danger, but most states require the plaintiff know extent of the possible injury.

If this knowledge is confirmed in writing then assumption of the risk is called express assumption of the risk. If the knowledge is not written down, then assumption of the risk it is called implied assumption of the risk. In many states implied assumption of the risk has been merged with contributory negligence and goes to the percentage of fault of the plaintiff.

Assumption of the Risk in most states is no longer available as a pure defense to a claim. The legal defense of assumption of the risk has been merged into contributory negligence. With contributory negligence, the jury decides how much each person in the lawsuit was a fault. If the Plaintiff was 50% or more at fault (51% in some states) then the Plaintiff cannot recover from the Defendant. Assumption of the risk is one of the factors that contribute to a plaintiff being at fault in an accident.

However that is changing in many states as courts are tired of dealing with claims in sports and recreation where the injured party should not recover for their actions.

Assumption of the risk is a valuable a defense. It can be used to show a jury that the plaintiff was solely responsible for his or her injuries. Assumption of the risk is also the only defense available when a minor sues in many states.

However, the legal issues aside, 28 years of reviewing claims and lawsuits have shown that assumption of the risk great value besides use as a defense. Plaintiffs, who understand the risks, do not get injured. More importantly, outfitters and guides who take the time to get to know their guests, answer their questions and fully inform their guest of the risks are not sued.

There are several sub issues of these ideas that need to be explored. From the guests perspective the more the guest knows they least likely that they will be injured. A guest who really understands what is going to happen is better prepared. The guest understands the activity is not an amusement park, that there are millions of things that are out of anyone’s control. Those guests will enjoy the experience, be less afraid and will deal with any issues with better results.

Guest’s who understand the risks also are more likely to ask questions before leaping. Is that snake poisonous, is that ice solid, can I boulder over here? Answering these questions might prevent guest injuries. An outfitter who goes forward informing and educating a guest is usually also one who encourages questions. Most people if they feel comfortable will ask questions, especially, if the conversation between guest and guide is encouraged rather than strained.

Outfitters and Guides who make it part of the program to educate their guests understand that educated guests are the best guests. Not only do educated guests remain healthy, they have more fun. Nothing is worse then giving up your warm clothing to a shivering guest when they should have brought their own, but did not know to do so. That may seem like a far fetched statement, but in the whitewater rafting industry, every guide carries extra clothing because guests are rarely fully informed.

Another important issue that arises when guests are educated is they develop a closer relationship with the guides and the outfitter. As such, there is usually little anger or emotion accompanying an injury. Anger or some other emotion is the basis for the majority of lawsuits and if you can eliminate this emotion you can reduce your chances of being sued. Educated injured guests usually understand how they were injured, or understand that accidents happen that do not have someone to blame for the injury.

Finally, educated guests appreciate the risk. They understand what the outfitter and guide are doing to make the activity fun and a success as well as to keep the guests safe. They understand the energy it takes to keep a group organized and together. Educated guests are the ones you like to work for.

One major problem of assumption of the risk is quickly once we become enamored with an activity; the risks fade as a danger and become mundane. Those risks that a new guest may see as terrifying, we lightly skip over every day. Watch your guest the next time you casually stroll the to an ice climb as they contemplate, with an engaged if not terrifying look on their mind, the crampons, ice axes and the mixed terrain slope. Those risks that we now ignore are real to your guests.

This acceptance of risk can create dire consequences for the guide and outfitter. Most times we fail to identify the mundane to your guests and consequently, leave our guests in a precarious position. Yet it is the mundane risks that generally lead to the small activity ending injuries. Slightly injured guests either leave or end their activity or continue placing everyone at a heightened risk.

Watch a guest carefully negotiate the cliff edge as you walk around it or standing on a slightly sloping ice covered rock. The greatest risk to everyone within earshot is possibly the flying ice axe as the guest, feet firmly planted tries to remain upright.

Most of the time, we work heard at informing the guests of the hidden risks. Avalanches, rock fall, and hypothermia are always covered in great detail. We miss those things we have come to accept as the day to day. Like driving to and from the activity, we talk about the risks of the activity in the van, ignoring the fact we are traveling at 65 miles per hour in the deadliest contraption invented by man.

Employee or contractor guides also accept risks as mundane that are still dangerous to them. This mundane acceptance becomes a worker’s compensation injury if awareness is not kept at the forefront of both guest and guide’s awareness.

Does this mean you need a continuous monologue of warnings coming from everyone’s mouth? No, it does mean that you need to have a well thought out education program. Inform the guest of what they need to know to evaluate the activity when they are exploring the idea of going. What the guests need to know when preparing for the activity. What the guests need to know when they are engaging in the activity. More importantly, paying attention to the guests looking for those expressions or voice intonations that indicate more information is needed.

For more articles on Assumption of the Risk see:

This California decision looks at assumption of the risk as it applies to non-competitive long distance bicycle rides and also determines that assumption of the risk also overcomes a violation of a statute (negligence per se).

Assumption of the Risk to be a bar to a claim the defendant must not owe a duty to the plaintiff that means the plaintiff must be involved in recreation or a sport.

In Ohio, Primary Assumption of the Risk is a complete bar to claims for injuries from hiking at night.

Most references in case law to assumption of the risk are to this California decision. The basis for understanding Assumption of the Risk is this decision based on an injured finger during a pickup football game.

New York Decision explains the doctrine of Primary Assumption of the Risk for cycling.

South Carolina Supreme Court writes a clear decision on Assumption of the Risk for sporting activities.

Keep your guests educated, healthy and happy and you will probably stay out of court.

Copyright 2011-2023 Recreation Law 720 334 8529, Recreaton.Law@Gmail.com