|
|
 |
|
|
|
|
|
|
| by William Jack Meola | | December 21, 2010 |
|
Ohio law essentially recognizes three types of defenses based on assumption of the risk: express, implied/secondary and primary. Express assumption of the risk involves a voluntary, knowing and intended acceptance of the consequences of certain activities. Express assumption of the risk generally is established by a written acknowledgment or waiver of liability by the participant or by a conspicuous written repudiation of liability by the party that is attempting to shift responsibility for the consequences of an activity. The most obvious forms of express assumption of the risk are written waivers or acknowledgements that participants in hazardous sporting events execute.
Implied or secondary assumption of the risk essentially has been merged into Ohio’s statutory comparative negligence scheme. The principals of implied assumption of the risk recognize that individuals may consent or acquiesce to exposure to an appreciated or known risk. Only implied assumption of the risk is merged with comparative negligence and neither the doctrines of express nor primary assumption of the risk are affected.
Primary assumption of the risk likewise is a defense to negligence-based claims. However, rather than focus on the duties and conduct of the individual who suffered the consequence of an action or activity, primary assumption of the risk focuses on the duty owed by the individual on whom or the entity on which liability is sought to be imposed. In cases where the primary assumption of the risk doctrine applies, no duty is owed to the individual other than to refrain from recklessly or intentionally causing injury or damage. Since the analysis involves the potentially liable party’s duty, the focus is not on the injured individual’s actions or activity.
Primary assumption of the risk, of course, most readily applies in matters involving sporting or recreational activities. The doctrine applies to participants and spectators, as well as passersby in some instances. The fundamental inquiry is whether the incident, event or activity which ultimately caused harm was an inherent risk of the game or recreation. Classic examples of inherent risk in participant activities would include runner and fielder collisions in baseball, falls or mishandled gymnastic maneuvers during cheerleading, playing on a trampoline, or martial arts sparring. In each situation, the potentially liable party is not responsible for negligent acts because no duty was owed to the participating individual. Instead, liability would result only for reckless or intentional conduct causing the claimed mishap or injury. Classic examples of spectator cases involve baseball bats or thrown or batted baseballs, hockey pucks, or similar instruments of the game which leave the playing area. In such circumstances, neither the involved participant nor the promoter or sponsor of the activity has a duty greater than to refrain from recklessly or intentionally causing injury. Moreover, in most cases, the courts have been consistent in liberally construing what risks are inherent or incident to the activity in which the participants are engaged or the spectators are observing so that the primary doctrine of the risk defense applies. For example, courts have held that a spotter allowing a rope to slip is an inherent risk of rock climbing and not a reckless or intentional act for which liability can be imposed and, similarly, a baseball misthrown during infield practice striking an unwary bystander was an inherent risk which was not subject to a simple negligence standard. Generally, for a risk not to be inherent or incident to the activity, it must be wholly unforeseeable to the usual conduct of the activity, such as when a race horse leaves the track and injures an individual adjacent to the track but not directly engaged in the activities of the race track, when a spectator is hit by a Go-Kart during a race with no expectation that the racer would leave the race course, or when a person being pulled on an inflated tube behind a speed boat had no reason to suspect that the operator of the boat would drive it too fast and cause the tube to flip.
Interestingly, there have been several cases involving motor vehicles or motorized vehicles in which application of the primary assumption of the risk doctrine has been analyzed. Indeed, in three cases involving passive passengers on ATV or ATV-like vehicles, the primary assumption of the risk doctrine applied because of the recreational aspect of the activity. More significantly, in Curtis v. Schmid, the court concluded that flipping an ATV while operating it on a dirt track did not constitute recklessness or intentional conduct under these circumstances where the operator simply lost control of the vehicle during otherwise normal operation, while in Taylor v. Mathys it was determined that operating an ATV over a snow drift was not reckless or intentional conduct. Similarly, and of equal import despite not being a case involving recreational activity, one court has held that the risk of falling while riding on the trunk of a moving motor vehicle is so inherently a risk of the activity that the primary assumption of the risk doctrine applies.
More recently, efforts have been made to extend the application of the primary assumption of the risk doctrine to commonplace activities and events which do not involve sporting or recreational activities or events. These efforts have had mixed results, though. For example, in the case of the transfer of a patient from a bed to a wheelchair, it has been held that the doctrine does not apply to bar the negligence claim of a nurse assisting in the transfer of the patient because it was not an inherent risk of the nurse’s activity for the ambulance driver responsible for making the transfer to let go of the patient or for the wheelchair to move during the transfer of the patient. Further, a survey of the cases involving attempted application of the primary assumption of the risk doctrine in matters not involving sporting or recreational activities reveals that the courts have considerably more difficulty adopting or defining what is an inherent risk of the activity. Cases involving ladders, climbing and/or tree-trimming well illustrate the difficulty some courts have in extending the primary assumption of the risk doctrine beyond recreational or sporting activities or events. While in the case of Ballinger v. Leaniz Roofing the Tenth District Court of Appeals expressly held that use of a ladder is an inherently dangerous activity subject to application of the primary assumption of the risk doctrine, the Courts of Appeals for the Sixth District and the First District do not unequivocally agree. In Hardy v. Hall, the Sixth District rejected application of the primary assumption of the risk doctrine concluding that the plaintiff’s fall from a ladder after being struck by branches of the tree he was cutting was not an inherent risk of either climbing the ladder or cutting the branches, particularly where the plaintiff’s allegation was that the defendant failed at a task that was designed to minimize the likelihood of branches striking the plaintiff or ladder. The court considered it significant that the task—i.e., securing the branches with a rope to control their fall—was in the court’s view not a “regular feature” of using a ladder or cutting a tree. Similarly, in Eagle v. Owens, the First District declined to hold that a fall while using a ladder and trimming a tree from the ladder was an inherent risk of the activity for purposes of applying the primary assumption of the risk doctrine; rather, the First District citing Hall v. Hardy decided that the parties “plan” to control the descent of the limb being cut somehow eliminated the limb striking the ladder as an inherent risk of the activity.
Certainly, the defense of any case involving sporting or recreational activities should include an assertion that the primary assumption of the risk defense applies. Indeed, the doctrine is best characterized as an affirmative defense which should be raised at the outset of any litigation and regarding which the Ohio Supreme Court has stated cannot be raised on the first occasion following a jury’s verdict by a motion for judgment notwithstanding the verdict. Ultimately, there is sufficient case law to raise primary assumption of the risk as a defense in any negligence-based case in which the injury occurred as a result of an appreciable risk inherent or foreseeably incident to the activity. While successful use of the primary assumption of the risk doctrine is more likely in sporting or recreational activity cases, its potential application and argument for its application should not be forgotten in appropriate cases which do not involve such activities. |
|
 back to current news listings | | back to home page |
|
|
|
|
|
