February 21, 2022 | Negligence
In Oklahoma, as well as many other states, “assumption of the risk” is a defense against a personal injury or wrongful death claim. This principle is based on common law, which means that it is judge-made law derived from previous cases.
Since it is based on common law, assumption of the risk is not a principle derived from any specific statute, although statutory law can clarify the concept. Since assumption of the risk is based on Oklahoma state law, not Oklahoma City municipal law, it applies throughout the state of Oklahoma.
What is Assumption of the Risk?
Assumption of the risk is the principle that an injured plaintiff cannot recover damages for injuries in an activity that included inherent risks when the plaintiff willingly accepted the risk.
Following are some examples that help explain when assumption of risk applies:
- A boxer who sustained a concussion after being knocked out in a boxing match should not recover damages against the other boxer. The plaintiff assumed the risk by agreeing to the fight in advance.
- A boxer who sustained a concussion from blows inflicted by the other boxer after the referee attempted to stop the fight might be able to recover damages against the other boxer. The injured boxer may not have assumed the risk that the other boxer would violate established boxing rules.
- A plaintiff who suffered a concussion in a bar fight could probably recover personal injury damages from the defendant.
The risk must be inherent in the activity; a negligent defendant cannot escape liability by asserting that the plaintiff “assumed the risk” of his negligence.
Assumption of the Risk is a Question of Fact, Not a Question of Law
Although assumption of the risk is part of common law, one Oklahoma statute does assert that, “The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall at all times be left to the jury, unless a jury is waived by the parties.”
In other words, the jury, not the judge, decides whether an assumption of the risk defense is applicable. The question is not whether the injured plaintiff should have known the risk, but whether they in fact knew the risk.
What the Defendant Must Prove: Specific Elements of the “Assumption of the Risk” Defense
Oklahoma Uniform Jury Instructions No. 9.14 assert that the defendant must show the following to establish an assumption of the risk defense:
- The risk was inherent in the activity that caused the injury;
- The plaintiff knew of the risk and appreciated the danger;
- The plaintiff could have avoided the risk;
- The plaintiff acted voluntarily; and
- The plaintiff’s act was the direct cause of their own injury.
The Oklahoma Court of Appeals, in MEDLIN v. PILOT TRAVEL CENTERS, L.L.C. (2012), clarifies that the plaintiff must have specifically agreed that the defendant would not be liable for the plaintiff’s undertaking of the risk. Alternatively, the defendant must have owed no duty of care to the plaintiff.
Primary Uses of the Assumption of the Risk Defense
The assumption of the risk defense protects the character of inherently risky sports and recreational activities. Imagine the consequences for football, for example, if a player could sue their team every time they suffered an injury.
The assumption of the risk defense sometimes applies to activities that do not qualify as sports or recreational activities. A variation of this defense may apply when someone suffers injury by ignoring the risk of a known product defect. Failing to use safety equipment when repairing a broken power line might qualify, for example.
Assumption of the Risk vs. Comparative Fault
When multiple parties are at fault, Oklahoma applies a “comparative fault” principle to liability for an injury. The court will assign a percentage of fault to each party. It will then assign liability in proportion to each party’s percentage of fault. A party whose percentage of fault exceeds 50% will receive nothing. A party whose percentage of fault is 50% or less will lose a proportionate amount of damages. A party 20% at fault, for example, will lose 20% of their damages.
If assumption of the risk applies, however, the defendant bears no liability for the defendant’s damages. Instead, the injured plaintiff must bear 100% of the cost of their own losses.
That’s why it’s best to contact an attorney if you are being blamed for your injury.
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