By now, most of you have already heard about the tragedy that occurred at the Indiana State Fair on Sunday when a stage collapsed, killing five people. Apparently the rigging and lighting equipment was brought down by high winds in that tragic incident. While it may seem like a freakish accident, is someone ultimately responsible for allowing this to happen? Could this have been prevented? Is this the type of risk one associates with going to an open air concert at a State Fair?
Hopefully, most of you are aware that when you purchase a ticket for a concert or sporting event, there is usually language on the back of the ticket that absolves the promoter or event organizer from any liability for risks inherent in the activity. By going to these events, you “assume the risk” for any injuries that may occur for known risks associated with that activity and this acts as a bar to recovery. For example, getting hit by a baseball at a baseball game is a known risk, as is injury from racing a go-kart around a track – as well as injury sustained while dancing in a “mosh pit” at a concert. If you are injured in these situations, you likely will not be able to make a claim against the team, stadium owner or event organizer. However, what if you are injured in a go-kart because there was standing water on the track, or the go-kart was missing a key piece of safety equipment? What if you were hit by a foul ball because the net that was supposed to protect you was not in place, or was installed incorrectly? Or, what if you were injured because a stage collapsed at a concert?
So what is assumption of risk? In its simplest form, “assumption of risk” means that the injured party, prior to the incident complained of, gave his or her consent to relieve the potential at-fault party of an obligation of conduct toward him, and agreed to assume a chance of injury from a known risk arising from the obligation for which the at-fault party has been relieved. In Washington State, there are two main types of assumption of risk: express and implied.
Express assumption of risk is generally bargained for and found in a contractual relationship. A person expressly assumes the specific risk of harm if that person:
- has full subjective understanding;
- of the presence and nature of the specific risk; and
- voluntarily chooses to encounter the risk.
Implied assumption of risk operates in the same way as express assumption of risk, but without the additional ceremonial and evidentiary weight of an express agreement. It has also been held to apply where you impliedly consent to relieve the at-fault party of a duty to yourself about specific, known, and appreciated risks, and you engage in conduct, from which consent is implied. In that situation, the at-fault party bears the burden of proving that you knowingly and voluntarily chose to encounter the risk.
In either express or implied assumption of risk, the key is subjective knowledge of the presence and nature of the specific risk. If you are injured while engaging in a recreational activity or while attending an event and are confused about your rights and duties in that situation, the attorneys at Adler Giersch are willing and able to assist you.