Finding Fault When Someone Takes Risk, Gets Hurt

Have you ever wondered who is legally at fault if you voluntarily undertake a potentially dangerous activity, such as scuba diving, river rafting or even watching a baseball game, and then get hurt?

The legal doctrine is called “assumption of risk” and can be used as a defense in a personal injury lawsuit to say, in essence, “Hey, you knew you might get hurt so it is not my fault.”

In recent years in California, the doctrine has come under scrutiny, but it still applies in many cases. In one case last year, a court refused to allow a woman whose finger was seriously injured in a touch football game (and later had to be amputated) from recovering damages from the player who had stepped on her hand.

One appellate court explained the theory: “If the defendant’s actions, even those which might cause incidental physical damage in some sports, are within the ordinary expectations of the participants--such as blocking in football, checking in hockey, knock-out punches in boxing and aggressive riding in horse racing--no cause of action can succeed based on a resulting injury.”(Ordway v. Superior Court.)

In another interesting case, a spectator sued the Los Angeles Dodgers after she was hit by a baseball while watching a game from a seat in an unscreened area of Dodger Stadium. The court concluded that she had consented to take her chances when she voluntarily sat in the unscreened area and was “sufficiently warned of the risk by common knowledge of the nature of the sport.”

A veterinary assistant who was bitten during an examination lost her personal injury suit against the dog owner. Dog bites, the court said, are an occupational hazard voluntarily assumed by those who practice veterinary medicine.

Each of these cases involved an implicit assumption of risk. The law is even more clear when it comes to an explicit assumption of the risk set forth in a written release or oral warning.

In a case decided on the last day of 1990, a California Court of Appeal upheld a lower court decision against the family of a man who drowned during a raft trip on the American River. He had signed a “release and assumption of risk agreement” stating he would accept all risks of the trip except gross negligence. In addition, he was taught how to swim a rapid, was told about the possibility of falling out of the raft and was given opportunities to back out of the trip.

The release was a critical piece of evidence, “an express assumption of risk which served to bar (his) wrongful death action.” In 1986, a release had the same effect in a case involving a student parachute jumper who was injured, even though the jumper said he did not realize what he was signing.

But as with most legal issues, there are twists and turns in these cases. For example, in a 1963 case, a release signed by a patient as a condition of admission to a hospital was held to be against public policy and did not prevent a personal injury suit.