If you’ve ever tried an extreme sport or dangerous activity, you may have been asked to sign a waiver. Waivers are one way that people can prove a plaintiff “assumed the risk,” which negates a potential defendant’s liability. Not all assumption of risk requires a waiver, however.
Ohio and assumption of risk
In Ohio, assumption of risk can be express (voluntarily signed waivers) or primary. Primary assumption of risk involves situations where the risk is so inherent to the activity, anyone participating is assumed to have voluntarily accepted that risk of injury.
The Ohio Supreme Court ruled in Horvath v. Ish that “[w]here individuals engage in recreational or sports activities, they assume the ordinary risks of the activity and cannot recover from any injury unless it can be shown that the other participant’s actions were either reckless or intentional.” In this case, one skier tried to sue another one for causing him injury. The court held that unless the defendant had been acting recklessly or intentionally, skiing is an inherently dangerous activity. Being hurt is so common that anyone engaging in the activity should know it’s a strong possibility.
To prove assumption of risk, a plaintiff must show “three elements: one must have full knowledge of a condition; the condition must be dangerous—a risk of harm; and the plaintiff must be voluntarily exposed to the hazard created.”
Therefore, if you voluntarily participate in a risky activity, knowing it could be dangerous, you won’t be able to hold others responsible for any injuries that occur.
In personal injury suits, assumption of risk might be confused or conflated with comparative negligence. Comparative negligence is a defense to negligence: the defendant argues that the plaintiff also acted in a negligent or reckless manner. If the plaintiff is deemed 50 percent or more at fault, they are unable to recover damages.
This defense is generally better suited to situations where the plaintiff was not knowingly participating in an unusually risky activity. For instance, in a slip and fall case, a plaintiff might claim they fell due to the defendant’s failure to clear their walkway of snow and ice. The defendant might argue that the plaintiff was wearing improper footwear to walk in the snow, which contributed to their fall.
The best way to find out whether your claim will succeed is to talk to us. When you call the Law Offices of Tim Misny, we’ll review your case and let you know whether assumption of risk might bar you from recovering.
Discuss your case with an Ohio personal injury lawyer today
Have you been a victim of someone else’s negligence? When you’re injured, I’ll Make Them Pay!® Call my office at (877) 944-4373 so that I can evaluate your case right away. We may be able to recover compensation for your injuries, pain and suffering, lost wages and more.