Abramson Smith Waldsmith LLP

Understanding assumption of risk

When you send your child to romp on a playground, you assume that there is a risk of certain injuries. For instance, bumps and bruises from falling are fairly common due to the clumsiness of children. There's a risk a child could fall from monkey bars if he or she doesn't hold on tightly. If a child jumps from a swing, there's an inherent risk of landing wrong and breaking an ankle, for example.

As a parent, you need to be aware that you assume certain risks when you go to different locations. The assumption of risk, overall, is the general knowledge that there are some unpreventable dangers that are possible in certain circumstances.

However, this does not assume that you know that a monkey bar will break and cut your child, that a fence placed too closely to a swing set will result in a laceration or that a pothole in the pavement won't be filled to prevent falls.

Why worry about assumption of risk?

Many businesses use assumption of risk as an affirmative defense in cases against them. For example, if you file a lawsuit against the park for having a swing too close to the swing set, the owner might argue that you knew where it was located and that you still allowed your child to play. You assumed the risk. The reality is that even if you voluntarily allowed your child to play, you could not have assumed that the owner would create a dangerous hazard. That negligence is what you're suing over.

For the business owner to invoke assumption of risk, he or she will need to show that there was previous knowledge that an injury could occur and that the plaintiff took on that risk willingly. This can be expressed or implied, meaning that a plaintiff may take on the risk in writing with a waiver or contract or through implied understanding of the inherent dangers present.

Remember, to make a solid case, you need to show that you could not have known the injury would take place. For instance, you couldn't know that playground equipment was in such ill repair that it would break, but you would know that there was a risk of falling from parallel bars or a slide. If negligence played a role in your child's injury, you do retain the right to pursue a claim directly against those responsible.

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