The Consumer Product Safety Commission reports there were 14,129 deaths related to all-terrain vehicle use between 1982 and 2015. Meanwhile, the U.S. Centers for Disease Control and Prevention reports an estimated 23,000 children and teens are treated in hospital emergency departments for non-fatal off-roading injuries every year – including ATVs, dirt bikes and other similar vehicles.
These incidents may sometimes be linked to negligence by an operator, trail owner or vehicle manufacturer. In some cases, though, a powerful defense of “assumption of risk” can be raised to overcome the “duty” element necessary to prove in negligence lawsuits.
Although we know there is something of a risk anytime we get into a car and drive on a public road, our injury lawyers in Orlando know the assumption of risk defense is generally not raised in typical car accident cases. The defense involves demonstrating the plaintiff knowingly and voluntarily assumed the risks inherent to a dangerous activity in which he or she was involved at the time of the accident. Often, it involves an express assumption of risk, such as signing a liability waiver. It can, in some circumstances, be implied. Most commonly, it’s invoked when we’re talking about recreational activities that are inherently risky, such as scuba driving, parasailing or rock climbing.
However, this defense was recently raised in an off-road dirt bike accident in California, where a woman sued her ex-fiance for a paralyzing spinal injury she suffered when she was thrown from her bike while riding with him. At issue before the California Court of Appeal, Second Appellate District, Division Four, was whether defendant’s “guarantee” of a trail increased the inherent risk of injury to a co-rider on a dirt bike. The court held it was not, and the assumption of risk barred the negligence claim where defendant’s reckless conduct was not totally outside the range of activity involved in riding a dirt bike off-road.
According to court records, the primary facts surrounding the accident are mostly undisputed. It was September 2011 when plaintiff and defendant – who had just gotten engaged that month – went out for a dirt bike ride at an off-highway vehicles area in the desert. They were on separate dirt bikes. Plaintiff lost control of her bike while riding over a sand dune. The bike hit a rock, plaintiff was thrown and she suffered severe and paralyzing injuries as a result.
During the course of their relationship, the couple regularly took their family to camp and ride dirt bikes at the site. The trails there are mostly hard and well-established, though some varied in elevation and terrain. Defendant is an experienced dirt bike rider, while plaintiff was not. It was established plaintiff was aware of the risk of the activity, as defendant’s son reportedly broke his arm on the couple’s first trip to the site.
On the day in question, defendant reportedly “guaranteed” plaintiff that all the terrain was road. That turned out not to be true.
Plaintiff sued defendant, alleging negligence resulting in her injury. Specifically, she pointed to that “guarantee” he gave her. However, defendant responded with several affirmative defenses – most notably plaintiff’s own assumption of risk – and filed a motion for summary judgment. Trial court granted the summary judgment, finding plaintiff’s claims were barred as a matter of law by the doctrine of primary assumption of risk. Plaintiff appealed, but the appellate court also affirmed.
The court noted the duty owed by a defendant in a negligence action not to increase an inherent risk doesn’t depend on plaintiff’s subjective appreciation or knowledge of a specific risk.
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Foltz v. Johnson, Oct. 25, 2017, California Court of Appeal, Second Appellate District, Division Four
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Relate Back Rule Can Be Applied in Some Florida Injury Cases Where Statute of Limitations Has Expired, Oct. 19, 2017, Orlando Injury Lawyer Blog