Injuries often happen in sports, and the majority of the time they are contemplated by the participant before they play the sport. For example, someone that plays high school or college football knows when they sign up that they may get a concussion due to the violent nature of the sport. However, where does someone cross the line from being “Part of the game” to being actionable negligence?
The term “assumption of the risk” has been used to express distinct common law theories, derived from different sources, which apply when a plaintiff has knowingly exposed themselves to particular risks. See Bohlen, Voluntary Assumption of Risk, 20 Harv. L. Rev. 14, 15-30 (1906); see also W. P. Keeton, Prosser and Keeton on Torts § 68,at 480-98 (5th ed. 1984). The three distinct legal concepts encompassed by the term are: (1) a plaintiff’s consent in exposing themselves to a defendant’s negligence; (2) a defendant’s negligence together with a plaintiff’s negligence which causes the plaintiff injury; and (3) a plaintiff’s voluntary participation in a reasonable activity with known risks such that a defendant owes no duty to the plaintiff to protect against harm arising from those risks. See Foronda v. Hawaii Intern. Boxing Club, 96 Haw. 51, 25 P.3d 826, 833 (Haw. Ct. App. 2001).
Under our present law, when a defendant breaches a duty owed to a plaintiff and the plaintiff knows of the danger presented by a defendant’s negligence and voluntarily encounters it, the defendant may be held liable. See Brosor, 99 N.H. at 308. The fact that the plaintiff knew of the danger and voluntarily encountered it does not, in and of itself, bar the plaintiff from recovering for their injuries; rather, this fact is “merely evidence to be considered with other relevant facts on the issue of [the plaintiff’s negligence].” Kambour, 77 N.H. at 49. Use of the term “assumption of the risk” to bar a non-negligent plaintiff’s recovery merely because they knew that a defendant breached a duty owed to them has been repeatedly rejected by this court, which has held that plaintiff does not assume the risk of injury simply by knowing of and voluntarily encountering a risk created by a defendant’s negligence. See Vidal, 86 N.H. at 6-7; Brosor, 99 N.H. at 308.
However, in cases involving co-participants, sponsors and organizers regarding their duty owed to participants in recreational sports activities when extraordinary risks are alleged are governed by some additional standards. Generally, “persons owe a duty of care only to those who are foreseeably endangered by their conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.” Manchenton v. Auto Leasing Corp., 135 N.H. 298, 304, 605 A.2d 208 (1992) (quotation and brackets omitted).
To determine the appropriate standard of care to be applied to participants, sponsors and organizers of recreational athletics, we consider: (1) the nature of the sport involved; (2) the type of contest, i.e., amateur, high school, little league, pick-up, etc.; (3) the ages, physical characteristics and skills of the participants; (4) the type of equipment involved; and (5) the rules, customs and practices of the sport, including the types of contact and the level of violence generally accepted. See Lestina, 501 N.W.2d at 33. “A defendant may be held liable to the plaintiff for [unreasonably] creating or countenancing risks other than risks inherent in the sport, or for increasing inherent risks, and in any event will be held liable for reckless or intentional injurious conduct totally outside the range of ordinary activity involved in the sport, but liability should not place unreasonable burdens on the free and vigorous participation in the sport.” Foronda, 25 P.3d at 841.
Sports or recreational activities injuries can be very difficult claims to make. However, the facts of each situation are important to understand if a successful claim can be made. If you were injured and believe it was a result of negligence, contact the experienced attorneys at Parnell, Michels & McKay and we can help you determine if you have the ability to make a successful claim.
Rory Parnell is a graduate of Southern New Hampshire University and New England Law – Boston. Rory worked full-time, for the then Law Offices of Parnell & McKay, every year he was in law school, and has been working at Parnell & McKay and then Parnell, Michels & McKay since 2002. Rory has been a partner at the firm since 2017, and dedicates his practice primarily to civil litigation.
Rory has been admitted to the New Hampshire and Massachusetts Bar Associations since 2011, and is licensed to practice in the United States District Court of New Hampshire. Rory works primarily in the areas of Injury (including motor vehicle collisions, motorcycle collisions, slip and falls, dog bites, trip and falls, and other injuries), Workers Compensation, Real Estate Litigation, Landlord/Tenant, Disability, and General Litigation areas.
Awards and Recognition's:
2021 Forty Under 40 Honoree from the Union Leader
2020 Pro Bono Distinguished Service Award
2017 New Hampshire Bar Foundation -Robert Kirby Award
2014 Pro Bono Rising Star Award
L. Jonathan Ross Award Winner for 2024
Professional and Charitable Affiliations:
Member – New Hampshire Association for Justice
Member – Massachusetts Academy for Trial Attorneys
Member – Queen City Rotary Club
Vice Chair – 603 Legal Aid
President – The Bridge Project (501c3)
Member – Daniel Webster-Batchelder American Inns of Court
Member – NH Bar Lawyer Referral Service Committee
