Implied Assumption of Risk: A Cornerpoint Case Pop


July 31, 2018


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What Washington Businesses Need to Know About Legal Liability for Injuries in Sports and Recreational Activities

By Stacia Hofmann

Cornerpoint Case Pops are dedicated to summarizing relevant, new cases — and their business and risk management lessons — in bite-size posts.

The Case: Pellham v. Let’s Go Tubing, Inc., 199 Wn. App. 399, 398 P.3d 1205, Washington Court of Appeals, Division III (June 27, 2017)

Many Washington businesses take advantage of our beautiful natural settings, active residents, and spirit of innovation and entrepreneurship to sell fitness, sports, and other recreational activities. The law recognizes the reality of the industry: (1) sports and recreational activities pose a risk of injury to participants, and (2) participants are generally aware of the risks and still choose to proceed with the activity. The legal term used to describe this tort concept is called “assumption of risk” because participants “assume the risk” of injury.

What Is Assumption of Risk, and When Does It Protect a Business from Legal Liability?

In the Pellham case, the plaintiff was injured while inner tubing down the Yakima River during an unguided excursion organized, equipped, and sold by a business called Let’s Go Tubing. Pellham encountered a swift current, went around a river bend, and struck the branches of a fallen log. He fell into the river, causing injury.

Tree in RiverPellham sued, arguing that Let’s Go Tubing’s negligence (that is, a lack of reasonable care) caused his injury: Let’s Go Tubing had known that the log was in the river.

The trial court dismissed Pellham’s case, and the Court of Appeals affirmed the dismissal. The Court of Appeals held that when people engage in sports and recreational physical activities, they will encounter risks that are inherent in and a normal part of the sport or activity. This type of injury-inducing encounter is called “implied primary assumption of risk,” and a business (or other defendant) does not owe a duty to participants to protect them from inherent and normal risks in the activity.

However, in order for a business to be able to rely upon the defense of implied primary assumption of risk, the business must show that the customer/participant possessed a full subjective understanding of the presence and the nature of the specific risk, and voluntarily chose to encounter the risk.

So, in analyzing these factors, the court concluded that even though Pellham did not know exactly how the combination of a swift current, a bend in the river, and a fallen tree would produce his injury, he knew that they were all potential risks of inner tubing down a river.

A Deeper Dive Into Assumption of Risk

Importantly, there are limits on when implied primary assumption of risk can bar an injured plaintiff’s claims. For example, if the business recklessly or intentionally causes the plaintiff’s injuries, then implied primary assumption of risk does not apply. Additionally – we’re getting pretty deep into legal theories here – implied primary assumption of risk does not completely bar a plaintiff’s claim when the business’s negligence makes a risky activity even riskier, or when the business actively created the risk. However, even if implied primary assumption of risk does not apply, the business may still have some significant legal defenses based on the injured person’s knowledge of some risks.

Furthermore, an explicit release of liability (like a properly drafted and executed written waiver) is called “express assumption of risk.” While it is similar to implied primary assumption of risk, it is a different legal doctrine with different legal rules.

Risk Management Lesson

The law recognizes that a risk of injury is inherent in sports and physical activities, and, in certain situations, allows for the defense of implied primary assumption of risk. However, assumption of risk is a complicated legal concept that is highly dependent on the facts, and judges, juries, and attorneys may misinterpret the rule, or the rule may simply not apply. Businesses in the fitness, sports, and recreation industry should actively manage risk by utilizing written releases and waivers for the additional defense of express assumption of risk, and to provide evidence that the injured plaintiff was aware of risks associated with the activity. Furthermore, having the right insurance can provide the financial backing for the injured plaintiff’s damages and for an attorney to fight the claim.

Email or call me to see if Cornerpoint can help with your risk management or litigation questions about assumption of risk, waivers, and releases.
This blog is for informational purposes only and is not guaranteed to be correct, complete, or current. The statements on this blog are not intended to be legal advice, should not be relied upon as legal advice, and do not create an attorney-client relationship. If you have a legal question, have filed or are considering filing a lawsuit, have been sued, or have been charged with a crime, you should consult an attorney. Furthermore, statements within original blogpost articles constitute Stacia Hofmann’s opinion, and should not be construed as the opinion of any other person. Judges and other attorneys may disagree with her opinion, and laws change frequently. Neither Stacia Hofmann nor Cornerpoint Law is responsible for the content of any comments posted by visitors. Responsibility for the content of comments belongs to the commenter alone.

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