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Cok Kinzler PLLP

Explaining the idea of assumption of risk

Bozeman and other areas in Montana have plenty to offer in terms of excitement and diversion. You can enjoy boating in any of state's many lakes, hunting in its forests, or hiking through its back country. Yet as the past experiences of many of the clients that we at Cok Kinzler have worked with demonstrate, these activities bring with them an inherent level of risk. Your first assumption may be those supervising or sponsoring them assume the risks that you and other participants may face. However, those same parties may just as easily argue that you and others understood the dangers an activity posed going in. 

The legal doctrine of assumption of risk states that a person is relieved of any obligation of due care to others in advance of undertaking an inherently dangerous activity. Many defendants in actions such as wrongful death have used this as an affirmative defense, claiming that people freely and knowingly assumed the risks associated with it. Assumption of risk may be expressed (such as with the signing of a liability waiver) or implied (yours and/or others participation implies assuming the risk). 

In many cases, however, the philosophies of contributory and comparative negligence supersede the assumption of risk doctrine. Montana, for example, subscribes to the doctrine of comparative negligence (as outlined in Section 27-1-702 of the state's Annotated Code). What this means is that you are only required to show that you (or in the case of wrongful death, your loved one) were less responsible for an incident than the party you are accusing of negligence. The amount of damages recoverable in such a case, however, would be limited by yours (or your loved one's) degree of fault. 

More information on assigning liability in a wrongful death lawsuit can be found here on our site. 

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