Assumption of Risk in New Jersey Injury Cases

"Assumption of risk" is a defense that says an injured person knew about a danger and accepted it, so they can't hold anyone else responsible. In New Jersey the defense is much narrower than many people think. In most ordinary injury cases it has been replaced by comparative negligence, but it survives in a few specific areas: certain sports and recreation, a handful of statutes, and signed waivers.

Ordinary cases: it's about comparative fault

Suppose you walk down a stairway you knew had a loose step, or drive with someone you knew was tired. The defense can't simply say "you assumed the risk" and end the case. Since Meistrich, that argument is folded into the question of whether you acted reasonably. Under New Jersey's modified comparative negligence law (N.J.S.A. 2A:15-5.1), a jury assigns percentages of fault. You can recover if you were 50% or less at fault, and your award is reduced by your share.

Recreational sports: the recklessness standard

In Crawn v. Campo, a catcher was injured in a pickup softball game. The New Jersey Supreme Court held that participants in informal recreational sports owe each other a duty to avoid reckless or intentional conduct, not ordinary carelessness, because some contact and risk is part of the game. The Court applied the same standard to golf in Schick v. Ferolito, 167 N.J. 7 (2001). That standard protects other players. It does not necessarily protect a facility owner that, for example, maintains dangerous equipment.

Statutes that make participants assume inherent risks

• Skiing: the Ski Statute (N.J.S.A. 5:13-1 and following) says skiers assume the risks inherent in the sport, such as variations in terrain, snow and ice conditions, and collisions with other skiers. Ski operators still have duties of their own, such as marking trails and maintaining lifts, and can be liable for breaching them.
• Roller skating: the Roller Skating Rink Safety and Fair Liability Act (N.J.S.A. 5:14-1 and following) sets out duties for both rink operators and skaters.
• Horseback riding: the Equine Activities Liability Act (N.J.S.A. 5:15-1 and following) limits liability for the inherent risks of equine activities, with exceptions such as faulty tack or ignoring a rider's ability.
• Recreational use of land: the Landowner Liability Act (N.J.S.A. 2A:42A-2 and following) protects some owners who let the public use land for activities like hiking, hunting and fishing without charge, except for willful or malicious failure to warn.

Waivers and releases

A signed release is sometimes called "express" assumption of risk. In Stelluti v. Casapenn Enterprises, LLC, 203 N.J. 286 (2010), the New Jersey Supreme Court enforced a gym's waiver for an injury on an exercise bike, but stressed limits. Courts generally will not enforce a waiver that tries to excuse reckless or gross negligence, or a business's failure to meet basic safety duties, and look closely at whether the release was clear. Under Hojnowski, a parent generally can't waive a child's future negligence claim against a commercial recreation business, though a parent may be able to agree to arbitrate it.

What this means if you were hurt

• Don't assume you have no case because you "knew the risk." In most situations, that only affects your percentage of fault.
• For sports and recreation injuries, the key questions are who caused it (another player, or the facility) and whether a statute applies.
• Keep any waiver or ticket you were given, and photos of the equipment or conditions.
• Remember the general two-year deadline to file suit (N.J.S.A. 2A:14-2). See New Jersey's statute of limitations.

General information about New Jersey law, not legal advice. These rules depend heavily on the specific facts.