Overcoming Assumption of the Risk Claims in Sports Injury Cases

February 14, 2018 | Attorney, Matthew Dolman
Overcoming Assumption of the Risk Claims in Sports Injury Cases

There are many legal defenses which a defendant can raise in order to prevent being found legally responsible for personal injuries. One common defense is the assumption of risk, in which a plaintiff is deemed to have knowingly engaged in dangerous behavior, and therefore accepted the risk that was inherent to it. The successful use of the assumption of risk doctrine will prohibit a plaintiff from being able to seek compensation for personal injuries. Learn more about the defenses which can be raised, and how to successfully prevent the defense, by consulting with a Clearwater personal injury attorney about the specific facts of your injury case. The experienced lawyers at the Dolman Law Group Accident Injury Lawyers, PA have been successfully defending personal injury claims for over forty-six years.

What is the Assumption of Risk, and How Does it Work?

An assumption of risk occurs when a plaintiff either knows or should have known of a risk which ultimately caused his or her injury. Express assumption of risk occurs when a plaintiff provides a specific understanding of a particular risk. This is commonly found by using a liability waiver to participate in a dangerous activity. By signing the waiver, the plaintiff has demonstrated that he or she knows of the specific risk addressed in the document, and it choosing to assume it anyway. Implied assumption of risk can be found when a plaintiff should know of an obvious risk inherent to the activity in which he or she voluntarily participated. This is common when an injury occurs in a contact sport or other activity which, by its very nature, carries a risk of injury.

After a lawsuit has been filed against a defendant, the defendant may respond by raising the defense that the plaintiff assumed the risk (either expressly or impliedly). Many defendants use the assumption of risk doctrine to ask the court to dismiss the claim before the case goes to a jury. If the judge agrees that the plaintiff voluntarily assumed the risk, he or she will dismiss the claim altogether. If the judge determines that the case should proceed to a jury, the defense of assumption of risk can be presented to the jury. If the jury agrees that the plaintiff voluntarily assumed the risk, it will find that the defendant was not legally responsible (“liable”) for causing the plaintiff's injuries. The defendant then has no legal obligation to compensate the plaintiff for his or her financial losses.

What Does Florida Case Law Teach Us About Assumption of Risk?

When a case is decided on a particular legal issue, future plaintiffs can use the ruling in order to make better-informed decisions about their own case. One of the bedrock cases of Florida assumption of risk law in contact sports cases was the Florida Supreme Court's opinion in the case of Kuehner v. Green (436 So. 2d 78)(1983). In that case, the Court of Appeal asked the Supreme Court to determine whether expressing assumption of risk in a contact sport bars a plaintiff from any recovery for his or her injuries. The Supreme Court determined that it is a jury's function to decide whether a plaintiff actually consented to the dangers of the sport. If so, the plaintiff is barred from recovering any damages. If the jury determines that the plaintiff did not actually appreciate the risk, it must determine whether he or she should have appreciated it. If the plaintiff should have appreciated the risk, he or she may only recover damages for that portion of the injuries which he or she did not cause. This finding left Kuehner unable to recover any damages as a result of the karate leg sweep executed by Green.

The Fifth District Court of Appeal recently addressed Florida assumption of risk law in the case of Petruzzella v. Church on the Rock of Palm Coast, Inc., 42 Fla. L. Weekly D 1141, (Fla. Dist. Ct. App. 5th Dist., decided May 19, 2017). In that case, a man who volunteered as a musician at his church was injured when he tripped over an electrical cord at a rehearsal. The volunteer fell off the stage and sustained substantial injuries. He sued the church for negligently maintaining its premises. The church, in response, claimed that the volunteer had been playing at the church for two years, and had voluntarily assumed the risks inherent to that activity – risks which he had become familiar with over years playing at the same location. The trial court agreed that the volunteer had assumed the risk, and granted the church's motion for summary judgment. On appeal, the Fifth District reevaluated the nature of the man's assumption of risk. It disagreed with the trial court's finding that it was an express assumption of risk. Earlier case law had determined that express assumption of risk could not be found outside of contracts not to sue (such as liability waivers) or contact sports. As such, the Fifth District found that any assumption of risk would have to be implied and that a jury would have to apportion liability between the injured volunteer and the church.

This case demonstrates the importance of the particular facts of a case in determining the nature of any assumed risk. Contact sports involve an express assumption of risk. But what about non-contact sports, such as tennis or golf? What about injuries which occur in a contact sport that are unrelated to the risk of contact (such as a baseball fan being struck by a ball in the stands)? In these circumstances, the assumption of risk may depend upon a jury's finding of whether that implied risk should have been understood by the injured plaintiff.

Experienced Representation for Your Personal Injury Claim

If your sports injury claim is being denied, contact the Dolman Law Group Accident Injury Lawyers, PA as soon as possible in order to ensure that your legal rights are protected. We will aggressively fight for your right to be compensated for your injuries. Call our office at (727) 451-6900 to schedule your free consultation with an experienced Clearwater personal injury attorney. Our personalized service, highly-skilled attorneys, and friendly staff will ease the burden after an accident so that injury victims can focus on their recoveries.

Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 727-451-6900 Clearwater Personal Injury Attorney


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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