Some daring individuals welcome the chance to take part in the risky activities at recreational or sports facility. That same facility usually asks it customers to sign a waiver, showing that the signer has accepted the existence of a known risk.
The signature on that waiver form might not be a significant fact, if the signing customer were to leave with a body in good shape. However, the story would be different, if he or she were to get injured, while seeking to take part in the offered recreational activity.
Issues that might be raised at trial that has resulted from the imagined personal injury case
• Did the plaintiff accept a risk for exposure to acts of gross negligence?
• Was the action taken by the facility, or by the facility’s employees one that could be classified as grossly negligent?
• Did the employees at this particular facility carry out an action that could be classified as intentional?
• Was the customer’s acceptance of a known risk spelled out clearly in the waiver?
According to the law, there are 2 types of risks
Expressed risk: That would be mentioned in a statement/waiver that was supposed to be signed by anyone that might agree to face such a risky situation.
The existence of an expressed chance for risk would rule out the chances for claiming that the rules about comparative negligence or contributory negligence might apply to the situation that caused the injury-linked accident.
Implied risk: One that the public has viewed as a possible source of danger or harm. The public has begun to feel that way about certain sports, particularly football.
Defense lawyers have shown a diminishing interest in using acceptance of an implied risk, if their client, typically a recreational facility, has been charged with negligence. In place of that defense, those personal injury lawyer in Ottawa now tend to use the concepts of comparative negligence or contributory negligence.
In both cases, the attorney for the defendant tries to spotlight a failing on the part of the plaintiff. In the past that failing had been the plaintiff’s assumption of an implied risk, before taking part in a given activity.
Today, though, the failing that gets mentioned in court most frequently is that of displaying some type of careless or neglectful behavior. Someone that has displayed such behavior could be charged with commission of comparative negligence or contributory negligence.
The charge chosen would depend on the state in which the trial was being held. Most states adhere to the principle of comparative negligence, but a few continue to apply the theory of contributory negligence. In the latter case, a losing plaintiff would be unable to recover a single penny as compensation for injuries.
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