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Defenses to Negligence Overview: Assumption of the Risk

Updated: Jun 26, 2020

Large farm (Photo by Edwin Remsberg).

Note: This post is not a substitute for legal advice.

Today, we continue our series on defenses to negligence with assumption of the risk. Those producers who allow the public on their property (customers, employees of your integrator if you are a poultry operation, etc) or just have concerns about a teenager wrecking his ATV on your property may be curious to learn about potential defenses that may exist. Please remember every negligence claim is different and the facts of each claim will depend on the defenses available.

Assumption of the risk, like contributory negligence, is an affirmative defense. The idea behind assumption of the risk is that the injured person who voluntarily consented to be exposed to a known risk cannot later sue for damages (Crews v. Hollenbach, 751 A.2d 481, 488 (Md. 2000)). When a person has assumed the risk, you no longer owe a duty of care to that person. Maryland courts have previously ruled that to prove assumption of the risk, three elements need to be shown: 1) knowledge of the danger; 2) appreciation of the risk; and 3) voluntarily confronting it. Proving this will depend on the facts in each case.

White barn with silos (Photo by Edwin Remsberg).

In order to assume the risk, you must know the risk exists. You can never assume a risk that you do not know exists. This is an objective standard that would be decided by the jury. For example, in a PA case involving an injured party who fell into a PTO shaft on a grain auger, the PA court found that the court would need to determine if the injured party knew or had heard stories about the dangers of PTO shafts to determine if he knew of the risk. To make a determination, a court could look at the injured party’s history in agriculture, or whether he had met people who had been injured in accidents with PTO shafts, etc.

You must also appreciate the risk as well as know the risk exists. This typically means that you are aware of the risks and appreciate the danger associated with the risk. For example, in a case involving an explosion caused by a gas leak, the Court of Appeals found that the injured party (a gas line repairman with 20 years of experience) fully appreciated the specific risk of using a backhoe near a gas leak (Crews, 2000). From our PTO shaft example, if the injured person had 20 plus years of experience working on grain farms, utilizing an auger powered by a PTO, and had been to farm safety trainings over those 20 years, that is potentially enough to show that the injured person appreciated the specific risk of working around an engaged PTO shaft.

Finally, you have to voluntarily assume the risk. In Maryland, voluntarily means a clear and reasonable choice to act or not to act (Crews, 2000). For example, you may understand that jumping from the bed of a pickup driving 70mph is dangerous and could cause death or severe injury, but if someone threats your life unless you jump out of the pickup’s bed then you have not voluntarily assumed the risk. In Crews, the Court of Appeals found that the gas leak repairman voluntarily assumed the risk when he took a job that specifically required him to go out and fix gas leaks. Remember that these are just examples, and facts in every case may change whether this defense applies in many cases.

Black and yellow No Trespassing sign on a gate (Photo by Edwin Remsberg).

Now that you know what assumption of the risk is, you should know it can come in two forms: 1) expressed assumption and 2) implied assumption. Expressed assumption of the risk involves an agreement between the parties, such as a requiring an agritourism customer to sign a liability waiver before going on a hayride. A more classic example would be going skydiving, where you are almost always required to sign a waiver of liability that spells out the risks. Implied assumption of the risk does not arise because of an agreement but because of the relationship between the two parties. One example would be going to a baseball game; as a spectator you have implicitly assumed the risk for getting hit by a baseball.

As a business owner, you do not want to rely solely on this potential defense applying to your case. Like contributory negligence, assumption of the risk is very fact-specific and in many cases is a question for the jury to decide if the defense will apply. As a business owner, you should consider working with an attorney to determine if expressed waivers may be good for your business operation, such as in agritourism. You should also work with your insurance agent to make sure that you have the right level of coverage. What is the right level of coverage? That depends on you, your operation, and what you can afford to pay. You may also want to work with an attorney in your area to see if additional signage is necessary or any other steps you can take to limit your liability. Being proactive is a good way to limit some of your potential legal liability.

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