What is “Assumption of Risk?”

We live in a world full of risks.  Despite these risks, we continue to live our lives: we drive cars even though they sometimes crash; we go skiing even though we may fall; we shave even though we may be cut.  Every day we encounter risks, weigh our options and choose whether the risk is worth taking or not.  In this post we will discuss the legal principal “Assumption of Risk” and how it affects personal injury lawsuits.

“Assumption of Risk” is a legal theory that basically means a person knew a situation could be dangerous but voluntarily entered the situation anyway, knowing the risks.  For instance, when you go to a baseball game, you know there is a risk of being hit by a foul ball.  Therefore, if you are struck by a foul ball the ballpark is not responsible for your injuries because you assumed the risk by sitting in the stands.  Similarly, if you are walking from your car to a store through a parking lot and choose to cut across the lot instead of using the sidewalk, you are assuming the risk of being hit by a car or falling in a pot hole.  In situations where your injury is caused by a risk you voluntarily assumed, you are responsible.

Assumption of risk is sometimes a very fact-specific issue.  What is an obvious risk to one person may not be so obvious to another.  For instance, you are aware of the hazards your own home presents; perhaps the top step on your front porch is loose or you frequently stub your toe on a poorly placed end table.  If you are hurt on your loose top stair, shame on you as you knew the risk it presented.  However, when a guest comes to your home and they aren’t warned of these hazards, they do not assume the same risk you do and you may be liable for any injuries these hazards cause to your houseguest.

In Custodi v. Town of Amherst, 2012 NY Slip Op 07225, a young woman was injured while rollerblading on a residential street.  In an attempt to avoid a stopped ice cream truck, she rollerbladed up one driveway onto the sidewalk and then came down the next driveway back out onto the street.  As she came down out of the second driveway she hit a two-inch deep c-curb where the driveway met the street and fell, injuring herself.  She sued the homeowner, who then asserted an assumption of risk defense arguing that the rollerblader knew or should have known about the c-curb when she descended the driveway.  The Court of Appeals held that there was no assumption of risk because the rollerblader 1) had never rollerbladed on this particular street before and 2) had never encountered this kind of curb in her rollerblading experience.  Because this particular person had never encountered this particular hazard before, she could not have assumed the risk and she was not aware of it.  This case would have come out completely differently had this person lived on this street or had experience rollerblading on streets with c-curbs.

Assumption of risk is all about common sense.  Be careful, be responsible and always look both ways before crossing the street.  If you were injured on someone else’s property and have questions about a possible lawsuit, give us a call.

Contact Us

  • This field is for validation purposes and should be left unchanged.