Assumption of the Risk

photo of police tape in car wreck

In the 2003 case of Pittman v United Tolls, plaintiff Gayle Pittman was involved in an accident on a bridge operated and maintained by defendant United Tolls. In that case, Pittman skidded on the icy bridge, which caused an accident that injured her. Pittman claimed that United Tolls was negligent in not maintaining a safe driving environment on the bridge when it did not remove the ice.

United Tolls countered that Pittman assumed the risk, meaning that she knows of the risk on driving in icy conditions and disregarded that risk. Therefore, United Tolls argued, it cannot be held responsible for Pittman’s actions.

On appeal to the Alabama Supreme Court (ASC), the ASC outlined a two-prong test to determine whether a defendant can succeed with the defense of assumption of the risk:

  • That the plaintiff had knowledge of, and an appreciation of, the danger the plaintiff faced; and That the plaintiff voluntarily consented to bear the risk posed by that danger.

In that case, based on the facts presented, the ASC ruled that Pittman did not appreciate the danger involved on driving on the bridge.

Assumption of the Risk as a Defense

Assumption of the risk is an affirmative defense in tort cases, meaning that the defendant must raise the defense and satisfy its requirements. If successful, this defense will prevent a plaintiff from collecting monetary damages due to injury. The idea of assumption of the risk is to deter the plaintiff from bringing a lawsuit.

For this reason, people who engage in demolition derbies cannot sue other participants for negligent or intentional torts. By a demolition derby, each side assumes the risk that someone else will crash into him. To put in legal terms, the participants in the derby had knowledge and appreciated the danger; and the participants voluntarily consented the bear the risk of a demolition derby and the danger therein.

Not Applicable When Against Public Policy

While a defendant can successfully defend himself with an assumption of the risk defense, this defense is not applicable when it is against public policy. Undergoing surgery is inherently risky. When that surgery involves sensitive areas such as the brain or spine, it is even more risky. In those instances, doctors will inform patients of the risks involved, which may be severe. Often, doctors will explain the risks in layman’s terms before the surgery. Prior to the surgery, the doctor and hospital will require the patient to sign numerous forms stating that the patient is aware of the risks involved and agrees to waive any right to sue the doctor or hospital in the event of complications resulting from the surgery. If complications result from the surgery, the doctor and hospital would likely not succeed by claiming assumption of the risk because that would be against public policy.

To expand on this, public policy wants a good health care system wherein people receive top care. If hospitals and doctors could compel people to waive such rights, the health care system would be a disaster. While the patient signed a waiver and would otherwise satisfy the requirements of assumption of the risk, it would not be applicable when against public policy.

If you have been hurt in an accident, contact the law firm of Parkman and White, experienced Alabama Litigators.

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