Assumption of Risk | Ana Lise | May 02, 2011

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Assumption of Risk

by Ana Lise Show/Hide

What's the problem that assumption of risk is meant to address? Sometimes people knowingly encounter a hazard that's been negligently created by someone else. When they do so, perhaps they should not be able to recover when the risk materializes, since it was in their power to avoid it. Assumption of the risk captures this instinct, and it traditionally has been available as a complete defense to a claim of negligence. Common fault lines in assumption of the risk cases include just how knowing one must be to be deemed to have assumed the risk — the Flopper case seems a good example, where the plaintiff may have only vaguely contemplated what adventure lay ahead, as well as Knight, where the rules of a pick-up game of touch football may not have been formally agreed-to up front — and when assumption of the risk is worth encouraging, such as when someone elects to rescue someone else despite danger.

Even more tricky are circumstances in which one's deeply held religious beliefs might insist upon a course of action in the face of someone else's alleged negligence that greatly increase the risk of harm. There the courts may, whether they like it or not, be called upon to render a policy judgment about whether to credit those beliefs in allowing a case to go forward.

Some torts courses also cover “express assumption of the risk,” where a plaintiff has agreed by contract not to bring suit should trouble arise. Those turn out largely to be contracts cases — with attempts by a plaintiff to have the exculpatory agreement declared unconscionable or otherwise unenforceable as against public policy. Other written “agreements” might actually serve only to underscore particular risks so that a would-be plaintiff is fully informed about them, ensuring that assumption of the risk is not eliminated on a claim that the plaintiff did not knowingly take on a particular risk.

Note: This is a draft. Coming soon — a rescuer doctrine/firefighter rule case.

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  1. 1 Show/Hide More Assumption of Risk: Knight v. Jewett
    Original Creator: jcochran Current Version: Ana Lise

    During halftime of a Super Bowl, Knight played in an impromptu game of co-ed touch football with several of her friends on a dirt lot. Even though no formal rules were discussed or written down, Knight alleged that she asked Jewett – who was playing aggressively – to not play so rough, otherwise she would stop playing. Soon afterwards, Jewett knocked Knight over and stepped on her hand, causing injury.

    The court held that Knight “voluntarily and knowingly assumed the risks of this particular touch football game when she was injured” and that Jewett’s conduct was not “outside the reasonable expectations of the participants” of the game. The court also held that Knight could not successfully state a cause of action for assault and battery because the there was intent to harm on the part of Jewett.

  2. 2 Show/Hide More Assumption of Risk: Lowe v. California League of Professional Baseball
    Original Creator: lilac1612 Current Version: Ana Lise
    While at a baseball game, Lowe was momentarily distracted by a dinosaur mascot which had touched him with its tail. When Lowe turned back to look at the game, a foul ball hit him in the face before he could react. The court found that because Lowe was distracted and made to break his concentration, his case deviated from previous cases which had upheld assumption of the risk defenses for defendants.
  3. 3 Show/Hide More Assumption of Risk: Murphy v. Steeplechase
    Original Creator: Ana Lise
    “Vigorous” young Murphy was injured while riding on “The Flopper” at Coney Island. The court held that “one who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary” and in this case, “nothing happened to [Murphy] except what common experience tells us may happen at any time as the consequence of a sudden fall.”
  4. 4 Show/Hide More Assumption of Risk: Shorter v. Drury
    Original Creator: lilac1612 Current Version: Ana Lise

    Doreen Shorter, a Jehovah’s Witness, became pregnant late in the summer of 1979. In October of 1979, she consulted with the defendant, Dr. Drury. Dr. Drury diagnosed Mrs. Shorter as having had a “missed abortion” and recommended a “dilation and curettage” (D and C) procedure. He advised her there was a possibility of bleeding and perforation of the uterus. Dr. Drury did not discuss any alternate methods in which the D and C may be performed. At the hospital, the Shorters signed a “Refusal to Permit Blood Transfusion” form.

    Approximately 1 hour after surgery, Mrs. Shorter began to bleed internally and refused to authorize a transfusion despite repeated warnings by the doctors she would likely die due to blood loss. Mrs. Shorter was coherent at the time she refused to accept blood. Mrs. Shorter bled to death.

    The court affirmed a verdict in which the jury reduced plaintiff’s wrongful death damages by 75% based on an assumption of risk by the Shorters that Mrs. Shorter would die from bleeding.

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May 21, 2013

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