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Assumption of Risk is Not a Defense in Boston Personal Injury Cases

Assumption of Risk as a Defense in Boston Personal Injury Cases Has Been Abolished

In some jurisdictions, a defendant in a personal injury case can plead what is known as an affirmative defense such as assumption of risk.  Generally speaking, an affirmative defense is a defense, which does not involve denying much of the allegations. Instead, a defendant will plead plaintiff knew of the risks when engaging in a certain activity or course of conduct, with full knowledge of the consequences, and chose to disregard or “assume” those risks.  By assuming the risks, plaintiff should not be able to fault defendant for engaging in any negligence so it should serve as a complete bar to recovery.

Massachusetts is a Mixed Comparative Negligence Jurisdiction

Boston personal injury lawyerAssumption of risk generally developed into what is known as a pure contributory negligence jurisdiction.   This means that if plaintiff contributed to the accident in anyway by being negligent in is or her own right, it would serve as a complete bar to recovery.  This could be as simple as a plaintiff walking down aisle in a big box retailer and slips on a wet floor while there was a caution wet sign.  In these jurisdictions, it could be argued plaintiff assumed the risk by walking on the floor anyway so the case should be dismissed. This may seem like a harsh result, but it is still the law in a handful of states and the District of Columbia.  

To address the hardship often placed on a plaintiff, the Last Clear Chance doctrine was created to allow for plaintiff to still win a personal injury case if the defendant had the last clear chance to prevent the injury.  An example of this would be a plaintiff who was walking across the street when he did not have the light and was hit by a car. If the street was fairly straight and flat and lighting conditions were good, it could be said even though plaintiff was walking against the light, driver (defendant) had the last clear chance to avoid the injury so this should negate the assumption of risk.

As our Boston personal injury lawyers can explain, Massachusetts took this a step further and abolished the assumption of risk when creating a system of mixed comparative negligence instead of contributory negligence.  Pursuant to Chapter 231, Section 85, of the Massachusetts General Laws (M.G.L), contributory negligence no longer serves a bar to recovery.  This is also the section that specifically abolishes the assumption of risk as a defense in all personal injury actions in Boston and around the state.

Dunn v. Menard, Inc.

In Dunn v. Menard, Inc., a case from the U.S. Court of Appeals for the Seventh Circuit, plaintiff and his son, who was already and adult at the time of this case, went to a big box hardware store to purchase pre-rolled insulation.  Plaintiff regularly purchased materials and tools from this same store.  He paid for 21 rolls of insulation and then was directed to the warehouse where customers are told to collect the insulation themselves.

According to court records there were two entrances to this warehouse and each one had a sign which warned customers against cutting open the bands around products, opening any boxes, pulling goods under other objects, and climbing up to reach the desired product.  The sign also instructed customers to ask for assistance from a store associated if they needed help getting the product for which they had already paid.

Plaintiff testified he did not see anyone around to help him and his son get the insulation down, but he did know he could ask for help if needed. He then parked his vehicle adjacent to a stack of roll insulation which was nearly 18 feet high.  He agreed it was too high to get the rolls himself, and also saw it was unstable, so he asked his son to watch the stack of goods carefully as he attempted to get the rolls in a manner so as not to cause the stack to collapse.

Unfortunately, things did not go as planned for plaintiff and the stack fell on top of him injuring his shoulder.  This shoulder injury was the basis for filing a personal injury lawsuit. Advanced Safety and Health keeps detailed statistics and we can see that warehouse-related injuries and fatalities occur each year across the U.S. and some of these involve falling merchandise. One is plaintiff had assumed the risk by failing to adhere to clearly-posted warnings and also by failing to use reasonable caution by allegedly engaging in a dangerous behavior in the context of a typical personal injury case. The other way to interpret this case is treat it like a premises liability case and defendant would argue they had no duty to warn of a known danger. In this case, trial judge agreed plaintiff was injured by an open and obvious danger and dismissed plaintiff’s claim. On appeal, the circuit agreed under the relevant state law and affirmed the dismissal.

Even though this was a federal case, had it been filed in a Massachusetts state court such as the Suffolk Superior Court in Boston or our federal court, the court would use local state law so there would be no defense of assumption of risk as it has been abolished. However, this does not mean plaintiff would always be successful.  Under our mixed comparative negligence system, plaintiff can win at trial as long as he or she was not found to be more negligent than defendant.  If a jury found defendant was more negligent than defendant by trying to get insulation for a towering stack, he would be precluded from recovery.

This would not be a question for a judge though as a jury would have to make such a determination if the case did not settle.  This could include looking at whether store was negligent in stacking insulation in such a manner. The jury could also look at whether the store was on notice of customers regularly tried to help themselves to merchandise stacked in the same way and if there had been prior accidents of a similar nature. A jury might find defendant was more negligent than plaintiff. However, the percentage of any negligent conduct attributed to plaintiff, assuming it was less than defendant’s negligence would be the same percentage of the monetary verdict subtracted from plaintiff’s eventual recovery.

If you have suffered personal injury in Massachusetts, call the Law Offices of Jeffrey S. Glassman for a free and confidential appointment — 1-888-367-2900.

Additional Resources:

Dunn v. Menard, Inc., January 29, 2018 U.S. Court of Appeals for the Sevenths Circuit

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Pontoon Boat Operator Charged With Criminal Negligence in Boy’s Death, Feb. 16, 2017, Boston Sport Injury Lawyer Blog