Assumption of the Risk
We all remember the outrageous court verdict when a jury awarded damages to a plaintiff who was burned when her McDonald’s coffee spilled and burnt her. The rationale of this type of verdict is to spread the risk of injuries and damages to the business sector, which can best price their products and services to insure against the damages that are inherent to their businesses.
To a great extent this philosophy continues. However there is a classic defense that is finding more and greater acceptance in the courts. This defense is called “assumption of the risk.” Some attorneys have argued that the defense only applies to sports such as skiing, skate boarding or the like. However courts are also applying the doctrine beyond participants in sporting events, e.g., a patron at a baseball game who is hit by a foul ball.
The doctrine can also be applied to people who are involved in activities that pose inherent risks to those who participate in them. Examples are the person who is injured while riding his motorcycle in a group ride or the person who is injured by a calf at a branding. The courts have determined that people who participate in these activities are held to know the risks associated with them and, if they are unwilling to accept the risk inherent in the activity, they should not participate.
These newer rulings do not discuss with the societal issue of who will bear the cost of the injuries caused by the activities. It appears that court have impliedly become more cognizant of the fact that health insurance is prevalent in our society or that the uninsured utilize bankruptcy protection when they incur excessive bills for which they have no insurance.
But another aspect of this trend is that the courts have decided that individuals should be held accountable for their actions. They view society as being knowledgeable of the risks associated with individual behavior. To what extent the courts are going to expand this defense is unknown; but it is clear that individuals can no longer jump off the bridge and then blame the bridge builder.
