The defendant waves a bat at a woman threatening to hit her. She cowers in fear. She sues for assault. The court will look at each element of an assault to determine liability. An intentional tort claim awards a plaintiff damages based on the defendant’s intent. The defendant placed the plaintiff in fear of an imminent battery without her consent. Thus, he’s liable for assault.
A negligence lawsuit works differently. It doesn’t place liability based on the intent of the defendant. Instead, negligence compares the defendant’s actions to an imaginary ordinary person, prudent person or one with special knowledge and skill to determine if the defendant is liable.
If an Ordinary Person would have Acted Differently than the Defendant in the same or similar Situation, He’s Liable.
The above definition sums up negligence liability. It sounds straightforward. Let’s say the defendant and plaintiff were driving in Los Angeles. The defendant, texting while driving, rear-ended the plaintiff’s vehicle as she slowed to a stop light. If an ordinary driver in Los Angeles would have been driving without texting and paying attention in the same or similar situation, the defendant is liable.
To win a negligence lawsuit, a plaintiff must still establish a claim based on elements:
- Duty: The defendant owed a plaintiff a duty of care
- Breach of Duty: The defendant breached his duty of care to the plaintiff
- Cause: The defendant was the direct or indirect cause of the accident
- Damages: The defendant’s actions led to the plaintiff’s injuries
Defenses to Negligence Claims
Even though the definition and elements of a negligence claim seem straightforward, the defendant isn’t without legal defense. One defense is assumption of risk.
A spectator at a baseball game is injured by a foul ball. She suffers a broken nose and concussion. Her damages includes medical bills and lost wages. The spectator sues the baseball team who uses assumption of the risk as a legal defense. Is the team liable?
Assumed Risk Explained
Some negligence defenses compares the fault of the plaintiff and defendant to determine damages. Assumption of the risk only looks at the defendant’s actions.
A spectator at a baseball game is injured by another spectator who shoots her and others. She suffers a debilitating injury. Her damages include medical bills and lost wages. The spectator sues the baseball team who uses assumption of the risk as a legal defense. Is the team liable?
Definition of Assumption of the Risk
Assumption of risk arises when a plaintiff voluntarily and knowingly assumes the risk of harm connected with the defendant’s negligence.
Once a plaintiff assumes the risk of harm, the defendant is no longer liable for injuries the plaintiff suffered. It doesn’t matter if the defendant was wrong, negligent, or reckless.
To win a negligence claim, a defendant must show:
- The plaintiff actually knew of the risks involved in the activity or conduct
- The plaintiff voluntarily accepted the expressed or implied risk by words, agreement, or actions
- It may also be necessary to prove there was obvious danger or the activity was inherently dangerous.
Looking at “Assumed Risk”
What is assumed risk? The plaintiff understood there could be risk of injury involved in engaging in a specific activity. He not only understood, but agreed to take the risk too. Assumption of the risks is classified in three board categories:
- Express Agreement
Express agreement occurs when parties enter into a written agreement where the assumed risks are defined. Express agreements are typically used in activities that involve ultra-hazardous activities, such as rock climbing, skydiving, or bungee jumping. The bungee jumping company provides the individual with a release of liability agreement which outlines the risks associated with the activity. If the customer signs the document, he’s just signed an express agreement. Therefore, the customer generally can’t sue later if injured.
- Implied Agreement
Implied agreement occurs when the plaintiff’s conduct shows he accepts the risks associated with the dangerous activities. There’s no written agreement involved in this assumed risk. Instead, there could be an oral agreement or conduct.
There are some situations where the risks are implied, assumed, understood and voluntarily untaken, but the defense can’t be used like:
- Behavior that completely unforeseeable
- Criminal behavior against the plaintiff
- Plaintiff’s voluntary behavior which is considered involuntary based on circumstances
Assuming the Risk is about the Defendant Showing the Plaintiff Didn’t Use Common Sense
If a spectator is injured by a foul ball at a baseball game, she typically can’t sue the baseball team. If she does, the baseball team can successfully use the assumption of risk defense. The spectator in the first hypothetical assumed the risk of being injured because she knew she could be hit by a foul ball at a game.
However, a baseball team’s assumption of the risk defense in the second hypothetical wouldn’t be successful. No spectator attending a baseball game would assume there’s a risk of getting shot by a fellow spectator.
Authored by Taelonnda Sewell, LegalMatch Legal Writer
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