Assumption of the Risk
October 10, 2013
All of us have, at some point in our lives, signed a liability waiver or purchased tickets to an event that had a liability waiver on the back of the ticket. A liability waiver is usually a general statement which provides that you, as the signer or person participating in the activity, cannot hold the venue or party providing the activity responsible should something happen to you i.e., an injury due to negligence. If you have skydived, you have signed this type of waiver. If you have attended a professional or college sporting event, you have agreed to this waiver by purchasing the ticket. These types of waivers exist almost everywhere, and you might be thinking: “how is that fair?” How can a party release themselves of all responsibility merely because they make me sign a piece of paper or purchase a ticket before I can engage in their activity?
The answer is: they cannot; at least not entirely. In Nevada, these types of waivers do not apply to gross negligence or willful conduct. In other words, where a party intentionally causes you harm the waiver will not shield the party from liability. So this begs the question: what about ordinary negligence? The answer is: it depends. Without doubt, the fact that you signed the release does not automatically kill any chance of recovery should you sustain an injury as a result of the activity. Instead, the analysis turns on whether you assumed the risk.
Under Nevada law, in order to prove assumption of the risk the at-fault party must show that (1) you voluntarily exposed yourself to the dangerous activity; and (2) you had actual knowledge of the risk you assumed.
How would this play out in a hypothetical situation? Let’s take the skydiving experience. Sally pays Sky High Skydiving to go on a skydiving trip. When Sally arrives she has to sign a general waiver of liability. Sally gets training on the skydive and is explained that the only risk of the activity is the parachute may not deploy and if this happens she might break some bones or even worse, die. Sally does the sky dive and luckily her parachute deploys. She lands safely, but after the dive she has neck pain. She had immediate onset of neck pain right after the parachute deployed. She later finds out that the jerking motion at the point when the parachute opened caused her a whiplash-type injury. Given these sets of facts, can Sally hold Ski High Sky Diving responsible for her medical bills? Based on Nevada law, she likely can.
While it is undisputed that she voluntarily exposed herself to a dangers activity (skydiving), she did not have actual knowledge of the risk she was assuming i.e. whiplash injury. All Sally had actual knowledge of was broken bones and death should the parachute not deploy. That is not what happened. Instead, Sally was injured as a result of a risk that she was not told about and did not know about. As such, the fact that she signed a liability waiver will likely not bar her from recovering damages for her whiplash injury.
This example is purely hypothetical and there is no way to know how a Court of law will view each case. The point of this blog is to merely highlight the fact that because you have signed a waiver of liability does not mean you are automatically barred from recovery.
If you have questions about this blog; if you have been injured and you’re in need of aggressive, courteous and professional representation, contact the Las Vegas accident attorneys at Cogburn Law Offices today. We can help.