One of the more common defenses that Indiana personal injury victims encounter when attempting to recover for their injuries is that of assumption of the risk. Essentially, the assumption of the risk doctrine bars a plaintiff from recovering for their injuries when the plaintiff is fully aware of the risks involved in an activity, but chooses to participate in the activity notwithstanding those risks. In many personal injury cases, such as Indiana car accident cases, assumption of the risk rarely comes up. However, assumption of the risk frequently arises in Indiana sports injury cases.
In Indiana, a plaintiff’s assumption of the risk can be used to assign the plaintiff a percentage of fault for the accident, thus reducing their total recovery amount. Only in rare circumstances will a plaintiff’s assumption of risk result in the plaintiff being prevented from recovering entirely. Recently, a state appellate court released an opinion in a skiing accident case discussing assumption of the risk.
The Facts of the Case
According to the court’s opinion, the plaintiff was a ski instructor at a ski resort. One day, while the plaintiff was giving a ski lesson to a six-year-old child, the defendant came speeding down the mountain. The plaintiff was in an area marked for “slow skiing.” However, as the defendant approached, he went off a jump to perform a trick, and ended up colliding with the plaintiff upon landing. The plaintiff was seriously injured and filed a personal injury lawsuit against the defendant.
The defendant argued that the plaintiff assumed the risks involved with skiing at the resort, and because of that should not be permitted to recover for her injuries. The trial court agreed, finding that the plaintiff assumed the risks that led to her injuries, and that the defendant did not owe her a duty of care. The plaintiff appealed.
On appeal, the court reversed the lower court’s decision. The court began its analysis by explaining the difference between primary and secondary assumption of risk. Primary assumption of risk, the court explained, completely bars a plaintiff’s recovery and only applies in situations where a plaintiff assumes “well-known, incidental risks.” Secondary assumption of risk, however, is a defense that considers the plaintiff’s unreasonable and voluntary decision to take on certain risks. Secondary assumption of risk can only be used to reduce a plaintiff’s recovery amount by assigning a percentage of fault to the plaintiff.
The court concluded that the lower court should not have applied the primary assumption of risk analysis to the plaintiff’s case. The court explained that primary assumption of risk should only apply to limited situations where the risks involved are truly inherent to the activity. Here, the court reasoned that collisions are not so common in skiing and snowboarding as to consider them “inherent.” The court also noted that it was hesitant to extend the doctrine of primary assumption of risk to “yet another” activity, explaining that there was no indication that applying primary assumption of risk in the skiing context would reduce the number of skiing accidents in any measurable way.
Have You Been Injured in an Indiana Sports Accident?
If you or a loved one has recently been injured in an Indiana sports accident, you may be entitled to monetary compensation for the injuries you have sustained. At the Indiana personal injury law firm of Parr Richey Frandsen Patterson Kruse, we have a proud history of standing up for the rights of Indiana accident victims. To learn more about how we can help you pursue a claim for compensation against those responsible for your injuries, call 888-532-7766 to schedule a free consultation today.
Indiana Car Accidents Occurring in Parking Lots and on Other Private Property, Indiana Injury Lawyer Blog, January 14, 2019
Federal Appellate Court Overseeing Northern and Southern District of Indiana Issues Opinion in Warehouse Injury Case, Indiana Injury Lawyer Blog, January 22, 2019