In today's blog post, I thought we should discuss the assumption of
risk doctrine and how it could affect your personal injury case. One situation
where I could foresee this being an issue is with the NFL cases regarding
concussions. Most recently, the Hall of Fame running back Tony Dorsett
has been diagnosed with signs of chronic traumatic encephalopathy or CTE.
If he were to file a claim against the NFL, and it was not precluded by
the worker's compensation doctrine, the NFL would certainly argue
that he assumed the risk involved in playing football. What is the assumption
of risk doctrine ? Well, it is a legal theory that a defendant will use
in a personal injury case in an effort to demonstrate that the plaintiff
knew of the risks involved in the activity and that, as a result, their
damages claim should be reduced.
The New York pattern jury instructions state that in a case where a defendant
owes a duty of reasonable care to a plaintiff but the plaintiff voluntarily
engages in an activity involving a risk of harm and the plaintiff knows
and fully understands, or should have known or fully understood the risk
of harm, the plaintiff's damages must be reduced by the extent to
which those damages were due to the plaintiff's own conduct. If a
jury finds that a plaintiff knew and fully understood or should have know
and understood the risk of injury, the jury must find that the plaintiff
assumed the risk of injury and the jury must consider to what degree the
assumption of risk contributed to the injury.
New York is a comparative negligence state. What does this mean ? It means
that juries are permitted to consider the comparative fault of both parties
and a plaintiff can recover for the comparative amount of fault placed
on a defendant. Many years ago and still in some states in this country,
there is a concept of contributory negligence which would prohibit a plaintiff
from recovering if the plaintiff contributed, in any way, to the occurrence
of an accident. How is this relevant to an assumption of risk blog topic
you ask ? Well, if a person assumed the risk of an activity, in New York
the assumption of risk would be a theory considered by the jury that could
increase a plaintiff's comparative fault. In a state where contributory
negligence state, if a jury were to find that a plaintiff assumed the
risk, then a plaintiff would be barred from recovering at all. So, the
assumption of risk theory will not bar recovery in New York but it could
reduce a recovery.
So how would this affect an NFL player's claim for chronic traumatic
encephalopathy like Tony Dorsett ? I suspect, without having read everything
about Tony Dorsett's case, that if he filed suit against the NFL for
personal injuries and he was not barred by the worker's compensation
doctrine, the NFL would also argue that Tony assumed the risk of acquiring
CTE because he voluntarily assumed the risk by agreeing to play football.
Tony's attorney would, of course, argue in response that he could
not have know and fully appreciated the risk of injury involved in participating
in football and suffering multiple concussions when he played because
medical science did not fully understand the causal connection between
concussions and CTE until very recently. As a result, Mr. Dorsett could
not have known or fully understood the risks of suffering multiple concussions
and the affect it would have on him years after he retired from football.
Again, if worker's compensation did not bar Tony's claim, I suspect
that his attorneys would prevail with this argument because there really
is no way that he could have known and fully understood the risks involved
in suffering multiple concussions. For all of our sports fans out there,
I would venture a guess that this argument is exactly why the NFL has
taken a hard line on head to head collisions in recent history and prohibited
this type of in game contact. The NFL realized a few years ago that there
could be substantial liability to its veterans and players for these type
of injuries and they are doing what they can to remedy this issue.
What is CTE ? CTE is a form of encephalopathy that is a progressive and
degenerative disease. It is most commonly found in professional athletes
who participated in boxing, football, ice hockey, professional wrestling
and other contact sports. It is also something that is seen in soldiers
that have been exposed to blast injuries. What does CTE do to an individual
? You will see symptoms of dementia, memory loss, aggression, confusion,
and depression which often occurs many years after the exposure to the
With all of this in mind, I would just urge our readers to give us a call
if you or someone you love has suffered a head injury and has experienced
some of the symptoms that I have discussed herein. As I always say, I
hope no one has to be a plaintiff, but I know that it does and will continue
to happen. If you find yourself in this spot, please pick up the phone
and call us for a free consultation and free case evaluation at 1.800.900.6204.
Our attorneys have over 150 years of combined experience to put to work
for you and we will fight for you.