Assumption of risk is a defense sometimes raised in personal injury claims. It can arise where the injured person signs a waiver, or where circumstances imply that the injured person knew of the risks and should be responsible – in whole or in part – for their injury.
Washington law recognizes four types of assumption of risk:
(2) implied primary,
(3) implied unreasonable, and
(4) implied reasonable.
Express and implied primary assumption of risk apply when the injury victim has consented to relieve the other party of a duty regarding specific known risks. Express and implied primary assumption of risk share the same elements of proof, and both express and implied primary assumption of risk are a complete defense to any injury claim. The only difference is whether the assumption of risk is expressly stated, or the injury victim, although not expressly agreeing to waive liability, engaged in conduct that implies her consent.
The other party must prove that the injury victim (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk. Knowledge and voluntariness are questions of fact and – unless reasonable minds could not differ –prevent dismissal of a personal injury lawsuit.
Express waivers of liability are not always enforceable. Waivers are not enforceable if (1) they violate public policy; (2) the negligent act falls greatly below the standard established by law for protection of others; or (3) they are inconspicuous. Washington courts “are usually reluctant to allow those charged with a public duty, which includes the obligation to use reasonable care, to rid themselves of that obligation by contract.” For example, Washington courts have held:
· public schools may not require pre-injury releases of students as a condition for participating in interscholastic athletics,
· pre-injury releases that exculpate medical research facilities for negligence in performance of research are invalid, and
· a liability disclaimer buried in the middle of a golf cart rental is invalid,
· whether a disclaimer in a fitness center contract, which the injury victim read without signing, in inconspicuous is a fact question for a jury, and dismissal by the trial judge was improper.
In contrast to express or implied primary assumption of risk, implied unreasonable and reasonable assumption of risk are not a complete bar to recovery of personal injury damages. Instead, they are essentially forms of contributory negligence. They apportion a degree of fault to the injury victim and reduce her damages.
Implied unreasonable and reasonable assumption of risk arise where the injury victim knows about a risk created by the other party’s negligence but voluntarily encounters it, anyway. “In most situations, an injury victim who has voluntarily encountered a known specific risk has, at worst, merely failed to use ordinary care for his or her own safety, and an instruction on contributory negligence is all that is necessary and appropriate.”
The difficulty is to determine in which case the injury victim’s conduct is merely negligent and is covered by comparative fault rules and in which case it manifests a consent to accept the entire risk and is a complete bar to the claim. Washington courts examine whether the injury victim impliedly consented to risks inherent in a particular activity.
But, when the other party’s negligent acts increase the risks, then the injury victim is not assumed to have consented to those additional risks. For example, a 12-year-old attending ski school went off of the course and hit an abandoned tow-rope shack. The Washington Supreme Court held that implied primary assumption of risk did not bar the injured skier’s recovery, because although the skier had assumed the risks inherent in skiing, he had not assumed the risk of negligent operation by the resort. Similarly, the Washington Supreme Court held that implied primary assumption of risk did not bar a cheerleader’s recovery after she was injured during an unsupervised practice. Although she had assumed the risks inherent in cheer leading, she had not assumed the risks created by the school’s negligence in failing to supervise the practice and provide adequate practice facilities. Also, the application of primary implied assumption of risk was inappropriate where the injury victim walked into a spinning helicopter rotor. Although the injury victim saw the rotor, appreciated the risk it posed, and still voluntarily chose to walk near it, there was no evidence that the injury victim consented to relieve the other party of any duties before encountering the risk. The court reasoned that the injury victim was not expecting to encounter the helicopter and the other party did not know that the injury victim would risk walking near it.
On the other hand, where a falling tree injured a man who was helping the clear trees from another’s property, Washington courts found the injury victim had assumed the risk of injury. He knew the tree could fall and injure him because he had observed and discussed the tree felling process and he had planned an escape route to avoid the falling tree. His actions were voluntary because he could have refused to help at any point.
The other party or their insurance may deny your claim if you signed a waiver and then are injured, or they may argue you assumed the risk – even though you never signed a disclaimer or waiver. This does not mean you do not have a valid personal injury claim. If you are in this situation you should immediately have a personal injury lawyer review your case.