Assumption of the Risk in Maryland
The idea of assumption of the risk is not only a legal term but it has also made its way into the popular culture. If you are dating a person who has twice been convicted of theft and he/she robs you after you break up, your friends might say that you "assumed the risk" by dating a thief. The idea is a simple one: you lose the right to complain about the harm done if you wrongfully or foolishly and unnecessarily exposed yourself to that risk.
Under Maryland law, this common sense notion is embedded in our tort laws. If you have assumed the risk for your injuries by knowingly and voluntarily assumed the risk inherent in a particular action or inaction that causes an accident, you cannot sue the other person for negligence. For example, if you get on your friend's motorcycle for a race and the motorcycle crashes at 120 miles per hour and you suffer personal injuries, you will be deemed to have assumed the risk of your injuries under Maryland law.
Defense lawyers in Maryland love to raise the assumption of the risk defense in personal injury cases. But, as a practical matter, the assumption of the risk defense is applicable to very few auto accident, malpractice, or product liability cases in Maryland. The assumption of the risk defense is most utilized by defense lawyers in slip and fall cases where, regrettably, the doctrine of assumption of risk has some real teeth in Maryland.
In Maryland, a defendant bears the affirmative burden when asserting the defense of assumption of the risk to prove the elements of the doctrine. In other words, the plaintff is not requied to prove she did not assume the risk; it is the defendant's job to provie it. The elements of prooff are: (1) the plaintiff had knowledge of the risk of potential harm; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily encountered the risk of danger. Assumption of the risk is not applicable in intentional tort cases.Difference Between Contributory Negligence and Assumption of the Risk
The doctrine is often confused with contributory negligence. The fact that some states, like Ohio, have merged the doctrines together, makes it all the more complicated. But they are different theories. The difference between contributory negligence and assumption of the risk is that contributory negligence defeats recovery because it is a cause of the accident which happens, but assumption of the risk defeats recovery because it is a previous abandonment of the right to complain if an accident occurs. Said differently, assumption of risk involves the negation of defendant's duty whereas contributory negligence is a defense to a breach of such duty. Sometimes, assumption of the risk and contributory negligence overlap but, usually, one exists without the other. Still, the reasonableness of the plaintiff's conduct is the ultimate issue for both.Links of Interest on Assumption of the Risk
- Maryland Cases
- Assumption of the Risk Opinion (2007 case, Morgan State University v. Walker, on assumption of the risk opinion involving a slip and fall in Baltimore, Maryland)
- Assumption of the Risk Opinion (2008 case, Allen v. Marriott, a Montgomery County case involving a black ice slip and fall).
- Assumption of Risk Opinion (1998 case, Baltimore Gas & Elec. Co. v. Flippo, finding that the the burden of proof is slightly higher for assumption of risk than for contributory negligence)
- Key Assumption of the Risk Opinions Outside of Maryland
- Ex Parte Barran (1998 Alabama: college hazing lawsuit fails on assumption)
- Knight v. Jewett (1992 California abandons assumption in light of comparative negligence in touch football game injury case)
- Parker v. Redden (1967 Kentucky: court abandons assumption for reasonableness of conduct standard)
- Anand v. Kapoor (2009 New York: flushes out nuances of the fault lines in assumption of risk cases)
- Hughes v. Seven Springs 2000 Pennsylvania: no more assumption not that PA moved to comparative negligence)
- Goepfert v. Filler (1977 South Dakota: don't jump out of moving vehicle)
Not for nothing, let me point out that our lawyers enter into co-counsel relationships with lawyers dealing with the defense of assumption of the risk in serious personal injury cases.
Our firm frequently enters into co-counsel fee sharing relationship with other lawyers - consistent with the Maryland Rule 1.5(e). If you are a lawyer who has a case in Maryland, call 800-553-8082 or get our opinion on your case online.