Assumption of the Risk - Recent California case

Posted Wednesday, January 05, 2011 by Ed Harper

Assumption of Risk – is an affirmative defense used by a defendant to prevent a personal injury claim. Recently, during an NFL football game, Sal Alosi, a strength and conditioning coach for the New York Jets, stuck his knee out during a play and tripped Nolan Carroll, a member of the Miami Dolphins. Millions of fans have watched replays of this incident on YouTube. Coach Alosi has apologized for his inappropriate behavior, but he has been fined $25,000 and suspended by the Jets for the remainder of the year.

The affirmative defense in this case will not preclude player Nolan Carroll from bringing an action against Coach Alosi, if he chooses to do so, for any injuries he sustained. Typically, an injured sports participant would be precluded from bringing a claim due to this defense if the event occurred while participating in a sporting event. The defendant would attempt to prove the injuries stem from the inherent risk of the sport, as the player has assumed the risk of injury. In other words, one gives up the right to bring any causes of action for the injuries which are routine in a particular sport.

In California recently, the assumption of risk affirmative defense has prevented an injured person, Sal Beninati, from recovering for his injuries which occurred while he was attending the Burning Man Festival. The case can be found at Beninati v. Black Rock, 175 Cal.App.4th 650. The appellate court prevented Mr. Beninati’s claim from going to a jury due to the complete defense afforded to the festival organizers. Mr. Beninati was injured when he tripped into the burning remnants of a 60’ burning man as he tried to deposit a photograph of a deceased friend.

Important factors in this matter included the fact Mr. Beninati had been to this burning pyre twice previously. Thus he had knowledge of the method of depositing the tokens into the burning ashes. More specifically, Mr. Beninati tripped into the flames causing him to be burned. He was walking in the residual burning flames and lost his balance as a result of a cable found within the wooden timbers. The cable apparently had been used to help steady the 60’ wooden structure prior to being set afire. Mr. Beninati claimed he tripped as he was unable to see the cable in the darkness. The court, however, was not swayed into believing Mr. Beninati had not been adequately apprised of the situation at the festival, and the lack of warnings by the organizers did not rise to the level of sufficiency to overcome the complete defense.

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