Assumption of the Risk

Assumption of the risk defense

Assumption of the risk is a common defense by recreation providers to negligence lawsuits involving all-terrain vehicles (ATV) where the rider is willingly taking a chance in a potentially dangerous situation. This defense relieves the recreation provider from any duty to eliminate risks the rider may experience in ATV riding because such risks cannot be eliminated. See Whisman v. Gator Invest. Properties, Inc., 149 Ohio App.3d 225, 236, 2002-Ohio-1850 (1st Dist.).

Prevail on the assumption of the risk defense

To prevail on the assumption of the risk defense in a case involving an injury from an ATV, the defendant recreation provider must establish the plaintiff knew of and accepted the risk involved in driving or riding on the ATV. As a result, the duty element of negligence is not established, which prevents the plaintiff from making a case. See Gallagher v. Cleveland Browns Football Co., 74 Ohio St.3d 427, 431-432 (1996). 

Ohio’s long-standing policy

A recent decision from the Twelfth Appellate District reinforces Ohio’s long-standing policy of applying the assumption of the risk defense to prevent ATV injury claims. In McLoughlin v. Williams (2015-Ohio-3287), the Court ruled that a seven-year-old ATV passenger assumed the foreseeable and customary risk associated with riding on an ATV and appreciated an ATV’s inherent danger. The Court based its ruling on the seven-year-old girl’s testimony that she was at first “scared” to ride the ATV. The child later decided to ride the ATV because it looked “really, really fun.” The Court therefore held the mother of the co-rider of the ATV was not liable for allowing the seven-year-old girl to ride or failing to supervise the child’s ATV riding.

Other cases

In addition to ATV cases, the assumption of the risk defense has also prevented notable injury claims resulting from some sports and recreation activities such as: Skiing (Horvath v. Ish, 2012-Ohio-5333); Hiking at night (Morgan v. Ohio Conference of the United Church of Christ, 2012-Ohio-453); Backyard play (Gentry v. Craycraft, 101 Ohio St.3d 141); Cheerleading (Crace v. Kent State Univ., 185 Ohio App.3d 534); and Ice-rink skating (Santho v. Boy Scouts of Am., 168 Ohio App. 3d 27).

Subrogation attorneys

To discuss the assumption of risk defense as it applies to a file you’re currently working, schedule a consultation with one of our subrogation attorneys.