Why defenses are important, even to plaintiffs: assumption of the risk

Defense lawyers assert “assumption of risk” whenever a sport is involved — but it only applies sometimes.  In Virginia, for example, assumption of the risk is subjective, taking into account “what the particular plaintiff in fact sees, knows, understands and appreciates.” Amusement Slides v. Lehmann, 217 Va. 815 (1977). The defense requires proof that the plaintiff (1) fully appreciated the nature and extent of the risk and  (2) voluntarily incurred the specific type of risk.  Id. at 819.

Whether a defendant prevails can be very fact-intensive.  For example, a person sliding into home plate might have assumed the risks of collision by engaging in a contact sport.  Likewise, a spectator along first base might have assumed the risk of being hit by a baseball.  But not every risk is foreseeable or assumed — a spectator at a baseball game does not assume the risk of the seat malfunctioning and causing a back injury.