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Assumption of the Risk Doctrine in Pennsylvania Personal Injury Cases

Assumption of the Risk is a rule that is used by Defendants in civil lawsuits. Assumption of the Risk is a potential defense, or way to defend a personal injury case. It is, however, often misunderstood. First, the person injured must have an understanding that they are taking a risk of danger by doing what they are doing. Second, they must voluntarily choose to accept the risk and do the activity anyway. Specifically, the likelihood and seriousness of the threatened harm must be appreciated.
For example, skiing has been decided to be an activity where you are assuming the risk of injury. But, this would be for, say, hurting your leg while falling during skiing the slope. If the chair lift collapsed while the skier was riding it, that is not part of assuming the risk. The skier did not accept the danger of the ski lift defect.

There is a high standard of proof for the defendant to prove that the injured person voluntarily accepted that specific risk.

A danger is supposed to be "obvious" when the activity or condition causing the injury and the risk are open to view and and would be recognized by a reasonable person. The "reasonable person" is basically the average, normal person standing in the shoes of the injured person. Essentially, would a normal person using common sense and judgment have understood that this was an obvious danger.

What is often misunderstood is that the specific harm that results must have been what was voluntarily accepted. An example would be where riding a roller coaster might be assuming certain risks, but you would not be voluntarily accepting a faulty bolt which fails and causes the coaster to fail.

For these reasons, a general liability waiver or release in Pennsylvania may not binding for future events. In other words, a business often has customers sign a waiver form before participating in something and the waiver is not specific. A person signing that waiver is not voluntarily waiving their rights to recover for future negligent acts or defective products that were unanticipated.

When a defense does raise the "assumption of the risk" doctrine, they can do so in Pennsylvania in a Motion to the Court. This is called a "Motion for Summary Judgment". They are asking the Court to find as a matter of law that there can be no dispute that the injured person assumed the risk of injury. It would be unusual for the Court to grant such a Motion. It would have to be a very obvious case. More likely is that the decision of whether the Plaintiff assumed the risk would be left up to the jury to decide.