When you go to a football game, do you see all the players on the team standing around? No – when you go to see sports, you go to see action. And with action comes the ability to receive a sports-related injury. This is the reason why participants in various sports are held at a different standard than people who are acting in everyday situations. This is why different laws apply to sports, such as the assumption of risks in sports.
So what are some things that need proven in order to have a case involving an assumption of risk? The defendant must be able to show that the plaintiff had actual knowledge of the risk involved in the activity and that the plaintiff voluntary accepted this risk. This could be expressly through an agreement, or implied by their words and conduct. This means that they were not forced to perform an activity. It may also be necessary to prove that the danger was an obvious one.
California State Code
California code 4th 296, 315-16, 320-21 (1992) Knight v. Jewett states, “A participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another player, engages in conduct so reckless to be totally outside the range of ordinary activity involved in the sport, or fails to use care not to increase the risk of a participant over and above those ordinarily in the sport.” What is the purpose of this rule? To ensure that the fervor of athletic competition will not be effected each and every time that there is a misstep or sudden stop, with the threat of litigation hanging overhead.
What if There is a Contract in Place?
Let’s assume that you signed a contract stating that you wouldn’t sue – would you be able to sue a defendant for your injuries anyway? Typically, no. The purpose of the assumption of risk is to prevent liability and prevention to bring on lawsuits from injuries caused. However, there are some things to keep in mind and possible weak points. For instance, the contract can’t be in violation of public policy, which is public necessity or accessibility. The contract can’t cover intentional acts, and the plaintiff will have to have the capacity to understand the contract – which means that, if the plaintiff is barely conscious or mentally ill at the time of the signing, it is working against.
What is “Express” Assumption of Risk and “Implied” Assumption of Risk?
- Express: This assumption of risk usually takes the form of a written agreement between the plaintiff and defendant. The plaintiff must have engaged in an activity that poses many hazards. In this case, they may have been required to sign a waiver stating that they assumed all risks associated with this activity, and litigation will not ensue from it.
- Implied: This type of assumption of risk typically does not involve a written agreement but, instead, may take the form of oral statements or plaintiff conduct. Implied assumption usually has to do with the plaintiff’s response after they receive information about a risk; for example, a simple “yes” or a head nod. Either way, it is necessary to examine all the facts surrounding the injury in order to determine whether the plaintiff had express or implied. However, when it comes to implied, there are some things that cannot be waivered. These include criminal behavior against the plaintiff, voluntary behavior that can be seen as involuntary, or behavior that is completely unforeseeable.
You may need a lawyer when you are dealing with an assumption of risk defense. You may want to know the difference between express and implied assumption of risk, what contracts say, and so much more. This can be a complex law to understand so you will want an attorney on your side. Assumption of risk can prevent a plaintiff from recovering damages for their injuries. Call Welebir | Tierney today in California to speak to an attorney you can trust with your case!