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Vail Law: What’s ‘assumption of the risk?’

Rohn Robbins
Vail, CO, Colorado

‘Assumption of the risk and coming to the nuisance’

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Vail Law bug



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A Montana jury recently awarded $850,000 to the family of Brandon Patch, who was killed in 2003 when he was struck in the head by a baseball that had come off an aluminum Louisville Slugger baseball bat. Patch was 18 at the time of his death, was an experienced ballplayer, and was playing for an American Legion baseball team when he was hit.

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The award was based on the jury’s finding that the manufacturer of the bat had failed to give sufficient warning of the potential dangers of its aluminum bats. There was no argument that the bat had been used in any but its intended way, nor was the bat found to be defective. What the jury found was exceedingly narrow; that Louisville Slugger failed to properly warn about the inherent dangers of the bat, even when used precisely the way it was intended to be used.

The Patch case leads us to the concept of “assumption of the risk” and its cousin, known in the law as “coming to the nuisance.”

Assuming the risk



The doctrine of assumption of the risk means that a person may not recover for an injury to which he has voluntarily exposed himself when in appreciation of the known risks associated with the dangerous thing. In the baseball circumstance, everyone knows that the purpose of the game is for the pitched ball to be hit by a bat. One would think, then, if a fielder were hit by the batted ball, that he would have assumed that risk.

The distinction in the Patch case was, apparently, that Brandon Patch did not (and, presumably, reasonably could not) appreciate the risk because the manufacturer failed to adequately warn of the velocity with which the ball might be struck by its aluminum bat.

Assumption of the risk is generally employed as a defense. In other words, the person being sued will defend the suit by asserting that it shouldn’t be liable because the injured person assumed the risk of potentially being harmed.

The essence of assumption of the risk is that knowing what he did, the plaintiff chose to accept the risk he might be harmed. And in doing so, liability for the harm shifts to his own responsibility.

And now, the nuisance

Related is the concept of “coming to the nuisance,” which usually occurs in the context of zoning. While substantially different than assumption of the risk, the two concepts are intellectual cousins.

What coming to the nuisance holds is when something is harmful or offensive and a plaintiff knew that it was harmful or offensive and, despite such knowledge, knowingly encounters it, he may be limited if he later asserts a claim that he was harmed or offended by the known condition.

The classic example is this: A pig farm, with all of its offensive odors, has existed in a certain location since time immemorial. The air is ripe with piggy smells and flies circle the farm in thick, black, swirling legions. The smell is as unavoidable as a Michael Jackson tribute.

Knowing all this, you decide to build your home immediately adjacent – and downwind – of the piggy farm. You find that you are offended by the stench and the endless flies. You sue. Defense to the suit would be, as least in part, that you “came to the nuisance.” You knew the farm was there, knew it was offensive, and still voluntarily encountered it.

While not quite the same, “assumption of the risk” and “coming to the nuisance” are similar. If you appreciate the potential dangers and embrace them anyway, the law may not allow you to hold someone else responsible if and when you are ultimately harmed by that known risk.

Of course, for either doctrine to apply, the risk must be known and reasonably apprehended. In the case of Brandon Patch, the jury seems to have determined that although he must have known the risk of a batted ball coming off a bat, he could not have reasonably known the greater risk of an aluminum bat accelerating the batted ball at a velocity Brandon Patch did not knowingly assume.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. His practice areas include: business and commercial transactions, real estate and development, homeowner’s associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at robbins@colorado.net.


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