Assumption of the Risk in Ohio Personal Injury Cases
Assumption of the risk in Ohio is a legal principle that serves as a defense in injury cases where the injured Plaintiff is attempting to recover damages for their injuries. The principle usually involves cases where the Defendant argues that the injured Plaintiff voluntarily exposed him or herself to the risk of the injury suffered. There are three types of assumptions of the risk in Ohio injury cases:
Types of Assumption of the Risk in Ohio
Express – Express assumption of the risk in Ohio applies when both parties agree to a release of liability. It typically comes up when there was a waiver of liability signed by the Plaintiff indicating their consent to take the risk and hold the Defendant harmless if injuries are sustained. These waivers may include an explicit waiver of a right to sue for injuries and an outline of the type of risks involved in the activity.
Primary – Primary assumption of the risk in Ohio occurs when the Plaintiff is assumed to have known and accepted the risk by engaging in an inherently dangerous activity (for example sports, skydiving or other dangerous activities). This defense will end the defendant’s duty of care as the law will apply a presumption that even where they did not specifically know the risks, the activity was dangerous enough for them to have assumed those risks.
Implied – Implied assumption of the risk in Ohio applies when the Plaintiff consents in a known or obvious risk to his/her safety. In this situation, the defendant owes some duty, but the plaintiff’s appreciation of that known risk creates a defense for the defendant. An example is attendance at a baseball game. If the spectator is hit by a home run baseball, he/she impliedly assumed that risk and would be able to recover.
Marchetti v. Kalish
As to the defense in the assumption of the risk cases, the Ohio Supreme Court has held that either recklessness or intentional conduct by the defendant would bar the application of the assumption of the risk. See Marchetti v Kalish, 53 Ohio St. 3rd 95 (1990).
In that decision, the court found that the plaintiff assumed the risk of her injury and did not find that the defendant’s conduct was either reckless or intentional. There is no liability for negligent actions.
With the Marchetti decision, it is clear that absent evidence of reckless or intentional conduct, assumption of the risk will apply and bar all plaintiffs from recovering in negligent injury claims.