Assumption of the Risk

Assumption of the risk ("AOR") is one of the classic defense arguments made against an injured person. It goes something like this: "I, the defendant, am not responsible for your injury because you engaged in an activity you knew could be dangerous." In other words, the injured party assumed the risk of injury. As trial attorneys we at Tolmage Peskin come across this defense frequently.

The AOR defense has its limits. Justice Schneier gave a good summary of those limits in the case of Fourtounis v. MJB Service Station Inc. Justice Schneier first reminds us that AORis not necessarily an absolute bar to recovery. AOR is a measure of defendant's duty of care. In other words, if there's a situation where the plaintiff has assumed the risk, the defendant has to do less, if anything at all, to insure plaintiff's safety.

This of course, leads to the conclusion that a defendant isn't totally off the hook. Take Fourtounis as the example. In this case, the plaintiff got up on a repair shop's lift with his car while the lift was on the ground,assisting in the car's cleaning. An employee not realizing plaintiff was on the lift, raised it. Plaintiff didn't realize he was in the air, stepped back, and fell.

The Court here found that plaintiff voluntarily placed himself in a hazardous situation by being on the lift. This should invoke AOR. However, because AOR is not an absolute defense, the shop still had a duty of care. The shop's duty was to make sure no one was on the lift before it was raised. It knew that plaintiff was assisting with the cleanup of the car. It knew that he was around the lift. The shop's failed to make sure all was clear before raising the lift.

Now let's make one thing clear. AOR also applies to damages. It will be argued by the defendant's that plaintiff should be awarded less for his injuries because he voluntarily placed himself upon the lift. This argument is a winner. But once the conversation is about how much money an injured person is awarded as opposed to if a injured person is going to be awarded money, the injured person is in a good position.