Express Assumption of Risk - Plaintiff Assuming the Duty of Care

Posted Tuesday, February 21, 2017 by Ed Harper

Express Assumption of Risk - Plaintiff Assuming the Duty of Care

Washington Pattern Instruction 13.04 is also a complete defense to a plaintiff’s case if properly proved by the defendant. The instruction states: “it is a defense to an action for personal injury or wrongful death that the person injured or person killed expressly assumed a specific risk of harm.

“A person expressly assumes the risk of harm if that person knows of the specific risk involved, understands its nature, and voluntarily consents to accept the risk by agreeing in advance to relieve the defendant of a duty of care owed to the person in relation to the specific risk.”

Express assumption of the risk is based more on contract concept rather than tort, whereas primary assumption of risk arises out of a tort concept. Scott 119 Wn. 2nd 484, 834 P.2d 6 (1992). When the defendant raises the complete defense of express assumption of the risk they are in essence contending that the plaintiff gave the advance consent, in essence contracting with the defendant to relieve the defendant of any duty/responsibility they would have owed to the plaintiff.

The seminal case in the state of Washington is Scott vs. Pac West. Scott, a young man, was injured when he sustained severe head injuries while skiing at a commercial ski resort. Justin Scott was 12 years old at the time of his accident on March 11, 1989. At the time of his injury Justin was attempting to ski on a slalom race course which had been laid out by the ski school owner.

Justin’s mother, Barbara Scott, with Justin’s father’s knowledge and acquiescence, had filled out and signed an application for the ski school.… The following language was included in the application: “for and in consideration of the instruction of skiing, I hereby hold harmless Grayson Connor, and Grayson Connor ski school in any instructor or chaperone from all claims arising out of the instruction of skiing or in transit to or from the ski area. I accept full responsibility for the cost of treatment for any injuries suffered while taking part in the program.” Scott at 119.

Express assumption occurs when the parties agree in advance so one of them is under no obligation to use reasonable care for the benefit of the other and will not be liable for what would otherwise be negligence.… However such assumption only bars a claim with regard to the risks actually assumed by the plaintiff. Scott at 496 – 497. Thus in this case, the language of the purported exculpatory clause contained in the ski school application was sufficiently clear to give notice that the ski school was attempting to be released from liability for its negligent conduct. Scott at 490.

The case goes on to discuss whether a parent can legally waive a child’s future potential cause of action for personal injuries resulting from 1/3 party’s negligence. In short, the answer is no. This will be further discussed at a later date.

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