What is the assumption of the risk defense
Under the assumption of the risk defense, the defendant claims that the plaintiff had knowledge of the potential risks involved in the activity and voluntarily chose to participate despite those risks. By willingly engaging in the activity with knowledge of the risks, the plaintiff is said to have “assumed” those risks, thereby releasing the defendant from liability for any injuries or damages that may occur.
Where is the assumption of risk often used
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.
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. Typically, the following elements must be asserted:
Knowledge of the risk: The defendant must show that the plaintiff had actual knowledge of the specific risks associated with the activity or situation. This knowledge can be obtained through warnings, prior experience, or general awareness of the risks.
Voluntary assumption of the risk: The defendant must prove that the plaintiff voluntarily and willingly chose to participate in the activity, fully understanding the risks involved, and accepted those risks without any form of coercion.
Where does Ohio stand on the assumption of risk
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.
Case examples
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
The assumption of the risk defense can vary by state and the specific circumstances of the case. Some states may have limited the scope of the assumption of the risk or established exceptions to its applicability. Common exceptions may include certain types of injuries or activities where there are legal protections for individuals, such as employees or consumers. Always consult your attorney or legal team to understand the specific laws and regulations governing the assumption of risk defense. Or schedule a consultation with one of our subrogation attorneys to discuss your matter and more.
