Overcoming Assumption of Risk in Washington State (03/01/12)

Posted on 03/01/2012

When people are injured while participating in a sport or activity, they may be barred recovery in a negligence action due to a defense known as "assumption of risk".  This defense has been successfully invoked in cases in which participants knew and voluntarily accepted the inherent risks of the sport or activity, but not where the risks were due to another's negligence beyond the inherent risks of the sport or activity.  The following discussion details case law and outcomes involving the assumption of risk defense in Washington State:  

I.          Four Kinds of Assumption of Risk          

There are four kinds of assumption of risk: (1) express assumption of risk; (2) implied primary assumption of risk; (3) implied reasonable assumption of risk; and (4) implied unreasonable assumption of risk.  Lascheid v. City of Kennewick, 137 Wn.App. 633, 640, 154 P.3d 307, 310 (2007). 

Express and implied primary assumptions of risk arise where a plaintiff has consented to relieve the defendant of a duty to the plaintiff regarding specific known risks.  Kirk v. Washington State University, 109 Wn.2d 448, 453, 746 P.2d 285, 288 (1987).  Express assumption of risk occurs where the plaintiff's consent is manifested by an express agreement.  Id.  Implied primary assumption of risk is similarly based on consent by the plaintiff, but without the presence of an express agreement.  Id.  The elements of proof are the same for both, with the evidence showing that the plaintiff (1) had full subjective understanding (2) of the presence and nature of the specific risk, and (3) voluntarily chose to encounter the risk.  Id.  Express assumption of risk is not a complete bar to a plaintiff's recovery; however, primary assumption of risk is a complete bar to a plaintiff's recovery.  Lascheid, 137 Wn.App. at 641, 154 P.3d at 310.  In Wagenblast v. Odessa School District, the Washington Supreme Court held that release forms public school students were required to sign as a condition for participating in interscholastic athletics were invalid whether they were termed releases or express assumptions of risk.  110 Wn.2d 845, 856-857, 758 P.2d 968, 974 (1988).    

By contrast, implied reasonable or unreasonable assumption of risk may arise when a plaintiff knows about an existing risk created by the defendant's existing negligence, and yet voluntarily chooses to encounter that risk.  Lascheid, 137 Wn.App. at 643, 154 P.3d at 311.  But again, these defenses are not complete bars to recovery.  Id.  Instead, the jury weighs it in determining comparative fault.  Id.     

Because implied primary assumption of risk is the only one of the four types of assumption of risk that is a complete bar to a plaintiff's recovery, it is discussed more thoroughly below.

II.         Implied Primary Assumption of Risk

Implied primary assumption of risk is the only one of the four kinds of assumption of risk that is a complete bar to a plaintiff's recovery.  Lascheid, 137 Wn.App at 641, 154 p.3d at 307.  The primary assumption of risk defense obviates any duty; and, of course if there is no duty there can be no negligence.  Id.  This is because if the plaintiff impliedly consented before any act by the defendant to relieve the defendant of any duty regarding a specific known hazard, the defendant has no duty and therefore there can be no negligence.  Id.  The implied primary assumption of risk doctrine is construed narrowly since it is a complete bar to recovery.  Id.  The defense has been successfully invoked in sports injury cases in which participants knew and voluntarily accepted the inherent risks of the sport, but not where the risks were due to another's negligence beyond the inherent risks of the sport.  Id.

In Kirk v. Washington State University, a cheerleader was injured while practicing and sued the university for negligence.  109 Wn.2d 448, 746 P.2d 285 (1987).  She claimed her injury resulted from dangerous conditions and inadequate supervision.  Id.  The university asserted assumption of risks inherent in cheerleading and argued that her claim was barred because she had assumed the risks inherent in the sport.  Id. at 451, 746 P.2d at 287.  The court held that the student assumed the risks in cheerleading, but she did not assume the risk of hazards caused by negligently dangerous facilities or inadequate supervision.  Id. at 455, 746 P.2d at 289.  Therefore, the court rejected implied primary assumption of risk as a complete bar to the plaintiff's recovery.  Id.

Similarly, in Scott v. Pacific West Mountain Resort, the court also rejected implied primary assumption of risk as a complete bar to recovery and allowed the plaintiff to bring a claim of negligence beyond the assumed risk inherent in the activity.  119 Wn.2d 484, 834 P.2d 6 (1992).  There, a boy was injured skiing and sued the ski resort.  Id.  The court concluded that he assumed the risk only of hazards inherent in the sport, but he did not assume the risk of the resort operator's negligence. Id at 499, 834 P.2d at 14.

This position is also found in the opinions of numerous courts, including our own, in holding that a plaintiff's assumption of certain known risks in a sport or recreational activity does not preclude recovery for injuries resulting from risks not known or not voluntarily encountered. Regan v. Seattle, 76 Wn.2d 501, 458 P.2d 12 (1969) (driver of "go-cart" on race course does not assume unknown risk of spilled water on the course); Wood v. Postelthwaite, 6 Wn.App. 885, 496 P.2d 988 (1972), aff'd, 82 Wn.2d 387, 510 P.2d 1109 (1973) (golfer does not assume unknown, unforeseen risk of being hit by golf ball due to inadequate warning but may assume other known risks inherent in the game); Miller v. United States, 597 F.2d 614 (7th Cir.1979) (swimmer in public lake did not assume risk of diving off pier into too shallow water); Segoviano v. Housing Auth., 143 Cal.App.3d 162, 191 Cal.Rptr. 578 (1983) (participant in recreational flag football game did not voluntarily assume risk for injuries inflicted by another player in violation of the rules); Leahy v. School Bd., 450 So.2d 883 (Fla.Dist.Ct.App.1984) (high school football player injured during a drill did not assume risks of improper supervision and inadequate safety equipment); Rieger v. Zackoski, 321 N.W.2d 16 (Minn.1982) (spectator who walked onto raceway after auto race did not assume all risks of unauthorized vehicles racing around the track; defendant 32 percent negligent); Shurley v. Hoskins, 271 So.2d 439 (Miss.1973) (hunter did not assume risk of being negligently shot by companion); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959) (skater did not assume risks of unusually hard and slippery ice at defendant's rink, even though known); Rutter v. Northeastern Beaver Cy. Sch. Dist., 496 Pa. 590, 437 A.2d 1198 (1981) (high school football player did not voluntarily assume all risks of playing "jungle" football at coaches' request without equipment); Meese v. Brigham Young Univ., 639 P.2d 720 (Utah 1981) (student beginner skier did not assume unknown risk of improperly adjusted bindings fitted by defendant; defendant 75 percent responsible for plaintiff's injuries); Sunday v. Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978) (skier did not assume unknown risk of becoming entangled in brush concealed by the snow).

Recently, in Lascheid v. City of Kennewick, the court again rejected implied primary assumption of risk as a complete bar to recovery in a non-sports related claim.  137 Wn.App. 633, 154 P.3d 307, (2007).  There, a police officer was injured when he lost control of his car while attempting to maneuver through a high-speed obstacle course and sued the city.  Id.  The court held that even if the officer assumed the risks inherent in an emergency driving training obstacle course, this did not relieve the city of its duty to provide training on a properly designed course under proper supervision.  Id.

In Taylor v. Baseball Club of Seattle, an implied primary assumption of risk defense successfully barred a negligence action against the Seattle Mariners brought by a spectator who was injured by a ball errantly thrown into the stands by pitchers engaged in "long toss" during the team's pregame warm-up.  The court held the following: (1) the warm-up exercise was a necessary and inherent part of the game; (2) the warm-up exercise did not constitute an unusual danger; and (3) the spectator's familiarity with baseball made the risk of injury foreseeable even if no one associated with the team had ever seen anyone hit by an overthrown ball during long toss. 

Still, "[i]n Washington, the law has long been that baseball stadiums have a duty to screen some seats and, as a corollary, a spectator who takes a seat in the unscreened portion of a stadium assumes the risk of being struck by a baseball."  Taylor v. Baseball Club of Seattle, 132 Wn.App. 32, 37, 130 P.3d 835, 837 (2006).  A sport spectator's assumption of risk and a defendant sports team's duty of care are accordingly discerned under the doctrine of primary assumption of risk.  Id.

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This legal brief is intended to provide general information only.  It is not intended to form, nor does it create, an attorney client relationship.  Please consult with an attorney to determine whether the authorities cited are current and apply in your particular factual circumstances.

© 2008 Jeffery M. Jacobs, Attorney at Law

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