Express Assumption of Risk

Some injuries are caused by another’s negligence, but often, people participate in dangerous activities, such as skiing, scuba diving, boating, rock climbing, etc., despite appreciating the risk of injury. Frequently, participants in these risky activities will be required to sign a waiver of liability, freeing the organization sponsoring the activity from the danger of a civil suit. California law recognizes express assumption of the risk as a defense to liability in personal injury suits.

A person assumes the risk when he or she appreciates the danger of an activity, but despite the risks, participates in the activity anyway. If a participant has assumed the risk of an activity, he or she is then foreclosed from filing a lawsuit over any injuries that may occur as a result of that inherent danger. A typical example of assuming the risk is playing sports, such as football. If a football player is tackled in the normal course of a football game, he or she generally cannot sue the other player for personal injury.

Express, or contractual, assumption of the risk means that the participant actually acknowledges, before any injury occurs, that he or she is aware of the risk of the activity. This defense requires a prior express agreement to waive liability, such as signing a contract or entering into a verbal agreement. For example, before a ski resort allows a person to participate in skiing, the resort may require the skier to sign a waiver of liability, releasing the resort from liability in the event that the skier is injured.

For express assumption of the risk to apply, there must be a valid agreement, and the agreement must not be contrary to the public interest. This means that agreements waiving the defendant’s responsibility to maintain even a minimal standard of care will not be enforced. Another issue that may arise is whether the injured participant agreed to waive the specific type of harm that he or she suffered.

An exception to this defense exists if the defendant was grossly negligent or intentionally harmed the injured person. In that case, the waiver does not apply. For example, if a participant signs a waiver for scuba diving, and the operator gives the diver a nearly empty oxygen tank because he failed to take care to separate the fresh from the empty tanks, this may constitute gross negligence and not be covered by the waiver of liability, leaving the operator open to lawsuit. Or, if at a ski resort, a ski instructor purposely pushes a skier down the mountain, the skier’s waiver will not cover this intentional harm.

Common law contract defenses may also be available to an injured party in an express assumption of risk case. For example, the sponsoring organization may have hidden the clause waiving liability in the contract, or otherwise prevented the injured party from being aware of what he or she was signing. Additionally, the contract may be fraudulent, the defendant may have used duress to induce the injured person to sign, or there may have been no exchange of consideration. In these cases, the waiver will not be valid and the lawsuit may progress.

If you have been injured in a recreational accident, please contact the dedicated San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for an initial consultation.

• KENDRA KNIGHT, Plaintiff and Appellant, v. MICHAEL JEWETT, Defendant and Respondent.