Everyone most likely agrees that an ice patch on an otherwise immaculately groomed ski slope is par for the course when one decides to spend a day on the slopes. Significantly fewer people may be inclined to agree, however, that an avalanche belongs under the same inherent risk category as the aforementioned ice patch. Similarly, a majority would most likely agree that hiking inherently carries the risk of falling on the trail, but perhaps falling on the trail while engaged in a night hike on an uneven trail places liability on the group conducting the hike, instead of the individual taking the fall. Questions of just what constitutes the inherent risk of an outdoor recreational activity, and whether a participant actually assumed that risk, still defy simple categorization by courts to this day.
Courts look to the nature of an underlying activity to determine the duty of care when dealing with the liability of defendants in cases brought by plaintiffs who have suffered an injury as the result of engaging in an outdoor recreational activity. A defendant has a duty to not increase the risks that are present in any outdoor recreational activity. However, the defendant does not have a duty to mitigate the inherent risks of that activity. Proof of an assumption of the risk can completely defeat a negligence claim because a defendant cannot be found liable to a plaintiff for the inherent risks of a recreational activity in which a plaintiff chose to participate. An inherent risk is a foreseeable and customary risk of a recreational activity.
A plaintiff cannot recover for injuries received as a result of him voluntarily exposing himself to the inherent risks of an activity. Most states today no longer recognize assumption of the risk as an independent legal defense, but this is because it has been merged into the defense of contributory negligence. If a plaintiff assumes an inherent risk in an activity and that assumption of the risk places at least half the fault of the resulting injury on the plaintiff, then the plaintiff is barred from recovering anything from the defendant due to his contributory negligence.
When has a plaintiff assumed the risk? Generally, three requirements must be met: (1) the plaintiff has knowledge that the activity engaged in has dangerous elements; (2) the plaintiff appreciates the nature and extent of the danger; (3) and the plaintiff subjects himself to the danger. To the extent that a plaintiff has knowledge of the risk, this knowledge must reach a level at which the plaintiff actually understood the nature of the risk involved in the activity. A plaintiff cannot properly assume the risk if he does not know the inherent danger an activity could present, he does not comprehend the risks in relation to his own physical and mental capabilities, or he does not have an understanding of the possible injury that could result from participation in the activity.
So what does an inherent risk in an outdoor recreational activity look like in practice? Well, there is not a bright line test for that, but the following cases give a sense of the contours of what an inherent risk can be. The Court of Appeals of Ohio, in Morgan v. Ohio Conference of the United Church of Christ, held that tripping, slipping, and falling are inherent risks of hiking and that these inherent risks are assumed when a plaintiff chooses to participate in a night hike and subsequently injures himself. The court found that the plaintiff was barred from recovery because he had assumed the inherent risks of hiking, even if the group leader had not chosen the clearest path for the night hike. Other courts have also found that falling while hiking, no matter the locale, is an inherent risk of the activity. In Andia v. Full Service Travel, the court found that the plaintiff had assumed the risk of falling when she was hiking on a volcano, and thus defendant’s duty to plaintiff was negated because plaintiff knew that slipping and falling on lava rock was possible. Similarly, in Kalter v. Grand Circle Travel, the court found that a plaintiff that was injured by a fall while hiking at the Machu Picchu ruins had chosen to hike through uneven terrain and thus she had assumed the inherent risk of falling while hiking.
The Court of Appeals of Colorado, in Fleury v. IntraWest Winter Park Operations Corp., held that an avalanche is an inherent danger or risk of skiing. Like most states that have a ski industry presence, Colorado has a Ski Safety Act that outlines the inherent risks of skiing. The court in this case found that although avalanches are not explicitly mentioned in the Ski Safety Act, the inclusion of avalanches in the inherent risks of skiing would be consistent with the legislator’s intent. Pennsylvania’s skiing act is known as the Skier’s Responsibility Act, and courts have fleshed out the inherent risks that are included in the Act. Examples of some inherent risks are the lack of safety netting, collisions with snow making equipment, and collisions with snowboarders. Pennsylvania courts seem to draw the inherent risk line, however, at collisions with inebriated underage snowboarders.
In conclusion, if a plaintiff assumes the inherent risk of a recreational activity, then the duty of care owed to that plaintiff by a defendant is negated. This negation of duty is supported by the fact that some activities are inseparable from a baseline risk, and thus an individual’s mere participation in that activity results in an acceptance of the risk of injury.
Published March 27, 2015