Assumption of Risk as a Defense to Injury Claims

Assumption of Risk as a Defense to Injury Claims

Anytime you attend a baseball game, ride on a roller coaster that turns upside-down, or go rock climbing at an indoor climbing gym, you are assuming a certain level of risk.

If you have been injured, you need a personal injury attorney who has years of experience. At Pyle Law, we know how to counter an assumption of risk defense and win you the compensation you deserve.

What is Assumption of Risk?

Personal injury cases are considered torts. A tort is a civil wrong which causes harm to another person. The person who commits the tort is known as a “tortfeasor.”

Assumption of risk is an affirmative defense invoked by the defendant. The defendant is admitting to their actions but justifying their behavior to mitigate or eliminate their liability.

Using this defense implies that the plaintiff was aware or should have been aware of the risk they were taking by attending an event or participating in an activity. Commonly when the assumption of risk defense is implemented, the plaintiff will be barred from recovering damages.

Does Kansas Recognize the Assumption of Risk Defense?

In 2020, Kansas experienced 55 fatal occupational injuries. It is impossible to know to what degree these 55 employees knew they would be risking their lives while on the job.

In 2013, Kansas eliminated the assumption of risk as a complete defense. This came about when the Kansas Supreme Court overruled their prior court decisions in Simmons v. Porter, 312 P.3d 345.

In this case, the Kansas Supreme Court decided that the assumption of risk doctrine would only be considered a factor when measuring the percentage of fault attributed to each party. The court decided to instead rely upon comparative negligence (KSA § 60-258a) in their rulings moving forward.

In applying comparative negligence or comparative fault, the injured party must be less than 50% at fault for the harm they suffered, to receive compensation.

Exceptions to Assumption of Risk Defense

There are a few exceptions that a plaintiff’s attorney can use to counter an assumption of risk defense:

• Foreseeability: the injuries that the plaintiff suffered must have been a foreseeable risk associated with the activity they were participating in. If the injury is not foreseeable, then the assumption of risk defense would not apply.

If a baseball game attendee is watching the game and a scoreboard falls on their head, that is not a foreseeable risk.

• Intentional or Reckless Behavior: if the defendant acted in a way intending to cause harm or in a reckless manner, then the assumption of risk defense would not apply.

For example, if a rock climber falls, but it is discovered that someone was tampering with the rope, that would constitute behavior intended to harm the victim.

• Attractive Nuisance Doctrine: it may apply in premises liability cases where a child trespasses onto another person’s property because they are attracted to a dangerous condition.

Finally, a child may wander onto private property because they are attracted to the swimming pool. If the child wades into the pool and suffers an injury, the property owner may be found legally responsible if:

• The property owner knows or should know that children were likely to trespass on the property.
• The condition on the property has the potential to cause serious bodily harm or death to a child.
• Children likely would not understand the risk presented by the condition; and
• The benefit of maintaining the safety of the condition or the cost necessary to remedy the condition is minimal, as compared to the risk posed to children.

If you have suffered harm, an experienced personal injury attorney will know the legal recourse available to you.

A Kansas Personal Injury Attorney Tirelessly Working for You

Every day when we perform our normal activities, like driving to work, we assume a level of risk. At Pyle Law, we believe it is our responsibility to help an injured party make the liable party and their insurance company, if applicable, pay for your injuries. Contact us today to schedule your free consultation.