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Assuming the Worst
By
David Day |
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When defending themselves against plaintiffs' complaints resulting from a
recreational activity, service providers try to establish that the injured
parties appreciated and accepted a particular risk of injury associated with
the activity. Thus, a primary component of an assumption-of-risk defense is
the establishment of a participant's actual knowledge of a particular risk.
The exculpatory agreements known as liability "releases" and
"waiver agreements" spell out the scope and nature of the risks to
be assumed by the participant. These contracts allow the participant to take
part in a recreational activity in return for a waiver of any personal injury
claim that may arise from the future negligent conduct of the recreation
service provider.
Tennessee in recent years has
adopted the doctrine of comparative fault, which evaluates the negligence or
fault between the plaintiff and the service provider defendant. While these
"releases" are not always effective in eliminating liability, they
can be a significant hurdle for anyone making a claim. There are recent
decisions that have indicated that in certain circumstances, an knowing and
contractually voluntary assumption of existing risks can bar a claim to
recover. In some situations, where the risk is "open and obvious,"
a written waiver or release can sound the death knell on any potential claim.
If you are planning to engage in an activity that involves any risk, it is
important that you fully understand and appreciate the risk before you sign
anything acknowledging that you are willing to fully assume the risks. If you
are going to participate in an activity where the risks are "open and
obvious," be prepared for those risks to occur and be willing to assume
the consequences. |
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