Frequently Asked Questions about Assumption of Risk
The following is excerpted from The Court TV Cradle-to-Grave Legal Survival Guide, an easy-to-read, in-depth explanation of the law as it affects all aspects of daily life. You can order the book, published by Little, Brown and Company, from our online store. It also is available in local bookstores, or you can call Little, Brown directly at (800) 333-3476.
WHAT HAPPENS IF A PERSON IS PARTLY RESPONSIBLE FOR AN ACCIDENT?
In some states, the defendant wins hands down and will owe nothing. In those states, for instance, if you slip and fall in a puddle in a grocery store, and the store can show that you fell because you were drunk or somehow careless, that could be seen as contributory negligence -- negligence on your part which contributed to the accident. Such a finding protects the defendant from liability.But it's rather harsh to deny a person any recovery when he or she is only partly responsible for an accident. So, most states have adopted a rule of comparative negligence, which leaves it to the jury to decide how negligent each party was. Some states block a plaintiff from collecting any money for damages if he or she is found to bear more than fifty percent of the fault. Other states proportion the money damages based on how much the plaintiff was at fault. In that case, if a plaintiff was sixt y percent at fault for an accident, while the defendant was only 40 percent at fault, the plaintiff could still recover partial damages.
Sometimes, defendants are also able to raise the issue of assumption of risk -- that the plaintiff knew that a particular activity was dangerous, but decided to do it anyway. This is an issue that cigarette manufacturers have relied on very success fully in cases where smokers sued.
CAN A PERSON SUE THE OPERATOR OF A SKI SLOPE?
Sure, but many states have laws protecting ski slope operators from liability. Even without such laws, it would be a tough case, because the slope operator could argue that a skier assumed all the ordinary risks of the sport -- including falling and break ing a leg. This would also apply to activities like roller-blading, ice hockey, water skiing, and other sports where an element of danger is assumed.After a skiing accident, some people attempt to sue makers of equipment on the basis of product liability. Such suits are sometimes successful, but it all depends heavily on the individual circumstances of the case. For instance, if there was something defective about a pair of skis that may have caused a person's accident, that person might have a claim against the manufacturer of the skis. If the injury was related not to a simple fall but to ski lift equipment malfunction, the person might consider suing the maker.
