Dealing with the defense of assumption of the risk

For some reason, one of the favorite defenses is assumption of the risk. This defense is based upon the proposition that there was something dangerous about the dog which the victim perceived prior to the accident.

There are significant limitations to this defense:

• Occupational assumption of the risk (i.e., the veterinarian's rule) cannot be used if the dog was a so-called "demon dog" or if the victim was not informed that the dog was vicious. It also does not work until the victim takes control of the dog.
• Implied assumption of the risk (i.e., knowingly encountering a dog that appears dangerous) cannot be used if the defendant forced the victim to encounter the dog.
• The defense easily backfires on the dog owner in most cases, because it is he who has to insist that there was something dangerous about the dog. 

When the Defendant Forces the Victim to Encounter the Dog

If the defendant forces the victim to encounter the dog, the courts will not allow the defendant to rely on the assumption of risk defense. 

For example, in Marshall v. Ranne, 511 SW 2d 255 (Tex. Supreme Court 1974) the plaintiff was bitten by a hog (that is not a typographical error despite the fact that this website is about dog bites) when the plaintiff left his house to get into his car. The plaintiff knew that the hog was outside his house and that it was known to be vicious. However, the court stated as follows:

We hold that there was no proof that plaintiff had a free and voluntary choice, because he did not have a free choice of alternatives. He had, instead, only a choice of evils, both of which were wrongfully imposed upon him by the defendant. He could remain a prisoner inside his own house or he could take the risk of reaching his car before defendant's hog attacked him. Plaintiff could have remained inside his house, but in doing so, he would have surrendered his legal right to proceed over his own property to his car so he could return to his home in Dallas. The latter alternative was forced upon him against his will and was a choice he was not legally required to accept. W. Prosser, Law of Torts § 68, at 450-453 (4th ed. 1971).

The Marshall court followed the rule expressed in Restatement (Second) of Torts, section 496E (1965):

(1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.

(2) The plaintiff's acceptance of a risk is not voluntary if the defendant's tortious conduct has left him no reasonable alternative course of conduct in order to

(a) avert harm to himself or another, or

(b) exercise or protect a right or privilege of which the defendant has no right to deprive him.

How the Defense Backfires on the Dog Owner

This defense can easily backfire upon the dog owner, however, because if the dog was that dangerous, the dog owner should have realized it and guarded or warned against it.

Experience has shown that this defense is raised by the insurance adjuster, and can be dealt with in discussions with him or the defense attorney. One begins by stating the obvious principal that assumption of the risk requires that a risk exists, and that the victim appreciated it. In other words, a victim would not be able to assume a risk that did not exist as a matter of fact, or one that he did not know of or, in the case of a little child, one that he did not appreciate. There are many cases that establish this principle. So you have to ask the adjuster or defense attorney whether a risk actually existed, and whether the dog owners themselves knew about it. Ninety-nine times out of a hundred, they will deny that there was any risk, or knowledge of it, and the defense evaporates.

If this goes to deposition, you use reverse psychology with the dog owners. You make it look like you are trying to get them to admit that their dog was dangerous and that they knew all about it. They will tell you many reasons why their dog could not have possibly been considered to be dangerous. When you give them examples of things that could have made the dog vicious, like illnesses or accidents, they deny them all. By the time you complete this line of questioning, they have convincingly ruled out the possibility that the dog was dangerous, or that they, as the owners of the dog, had any reason to think that the dog was dangerous.

You then begin asking questions about knowledge on the part of victim. The first one is how much contact the victim had with the dog in the past. It is always the case that the victim had less contact than the dog owner, implying that there was less opportunity to learn about the dog. You then ask them whether the victim had some kind of special contacts with the dog or with people from the dog's past, which would have given the victim knowledge superior to that of the owners themselves. Inevitably, the answer is that there were few or no contacts, and no special knowledge on the part of the victim. You then ask, "In view of the fact that even you didn't know that your dog was dangerous, can you explain to me how my client could have learned that the dog was dangerous before this accident happened?"

This is basically a win-win line of questioning, because either they admit that the dog was dangerous and put themselves into liability that way, or they destroy the defense of assumption of the risk.