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Robbins: Assumption of the risk

Say I go to see the Rockies. We’ll leave it for another column to ponder why I would.

Say, too, I am in an expansive mood and ante up for the good seats. My wife, the kids and I park ourselves in the first row on the third base line just beyond the edge of the protective screen. As I sit, I wax poetic about the unobstructed view. “No squinting through the netting!” I puff out my chest and exclaim.

The game commences and everything goes well. The weather for this night game is perfect and — this being a home game and all — the Rockies are comfortably ahead heading into the final innings. As is my wont, I am chattering away paying scant attention to the game.



Suddenly, there is the sharp crack of a bat and as my head snaps forward, holy crap! Heading towards me at warp speed is half a bat, the other half winks forlornly in the batter’s baffled hand.

I do the brave thing.



I shriek and duck.

The barrel whizzes overhead and, behind me, a women even less attentive to the game than I meets the Louisville Slugger with her brow which immediately flowers a lovely crimson spray of blood.

Notwithstanding the split in her brow and the river flowing down her jowl, she is less hurt than angry. Thankfully not at me. I presume, as inattentive as she was, she neither heard me squeal nor saw me dive into my molded plastic seat.

Clutching the bloodied bat aloft like Mel Gibson rallying the troops in Braveheart, she wails, “I want my pound of flesh!”

OK?

But can she exact that tithe from the notoriously tight-fisted Montfords?

It’s complicated.

Should our angry heroine sharpen her claws against the Rockies’ ownership, sure as shootin’ they would invoke the defense of assumption of the risk. And that brings us in a rounding the bases sort of way to our subject.

Assumption of the risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff’s right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which the plaintiff was participating at the time of his or her injury.

OK — a quick translation. An “affirmative defense” is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise wrongful conduct. The law of “torts” is the law of injury to persons or property (in this case, the angry woman’s noggin). A “torfeasor” is the person who is alleged to have committed the wrongful conduct that resulted in the injury.

Ah, but if life were so simple, maybe lawyers could take more vacation time.

You see …

There are two flavors of assumption of the risk.

“Primary” assumption of the risk occurs when the plaintiff knows about a particular risk and — through words or conduct — accepts that risk, thereby relieving the defendant of a duty of care. The primary assumption of risk defense operates as a complete bar to recovery.

For example, in our own little frozen winter world, someone who goes skiing assumes the risk that they may fall and tear a ligament. And, speaking broadly, if that’s all there is to it, they will not be able to sue the skiing company.

“Secondary” assumption of the risk exists where the defendant still has a duty of care to the plaintiff, but the plaintiff knew about the risk caused by the defendant’s negligence and proceeded anyway. For example, say I loan you my jalopy and I warn you that the brakes are sort of finicky. Knowing this, you peal out from my driveway. As fate would have it, several miles down the road, you press the brake pedal through the floorboard and, um … just as I warned you, it takes a little while to engage. If an injury results, I may have a secondary assumption of risk defense.

In comparative negligence jurisdictions — those that may apportion fault between several parties including the plaintiff for his or her own contribution to the harm that ultimately resulted — secondary assumption of risk is applied as a factor that the jury can consider in allocating fault, rather than adopting it as a complete defense.

Back to baseball and our angry fan.

It is common knowledge that things fly out of hand and off of bats at baseball games, sometimes with frightening ferocity. With that knowledge in your head (or if that knowledge should have been in your head), you nonetheless arrogantly plunk yourself down beyond the netting. What’s more, if you are more interested in catching up and chattering than attending to the game and, lo and behold, you suffer from that known risk and a bat makes acquaintance with your forehead, you may simply be out of luck if you try to make hay with a lawsuit.

If what happens is what you reasonably knew might happen and you nonetheless ignored or embraced that risk, well, hey, that’s on you.

You just might find, “Yer out!”


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