Beardsley, Jensen and Von Wald
What if you are injured using a product you know is dangerous – are you barred from recovering damages based on your assumption of the risk?
Maybe – maybe not.
Sometimes, dangers are "open and obvious." Open and obvious dangers are conditions that create a risk of harm that is visible, well known or discernible by casual inspection. A manufacturer ordinarily has no duty to warn of open and obvious dangers, and a product is usually not defective and unreasonably dangerous because of such dangers.
For example, manufacturers are not required to warn of the open and obvious dangers associated with lawnmowers, power tools, motorcycles, and all terrain vehicles. You will likely be deemed to have assumed the risk of injury if you're injured as a result of the open and obvious danger – such as sticking your hand into the lawnmower blades.
What if the dangers are not open and obvious? What if the lawnmower blades fracture and explode during normal operation, the power tool turns itself on when bumped a certain way, the accelerator sticks on the motorcycle, or the all terrain vehicle tips over on a slight slope?
Last week, our Supreme Court reaffirmed the principle that an injured party must have knowledge of the specific defect and risk posed by the product for assumption of the risk to apply. Knowledge of the generally dangerous nature of the product is not sufficient. Wangsness v. Builder Cashway, Inc., 2010 SD 14.
So, to have assumed the risk, the user must have known and accepted the specific risk of the lawnmower blades exploding, the power tool turning itself on, the accelerator sticking on the motorcycle, and the all terrain vehicle tipping on a slight slope. Knowing only of the general dangerous nature of the product is insufficient.
Most of the time, a jury will decide if the user assumed the risk based upon all of the facts and circumstances.
Lawline@KOTATV.com is intended as general information on legal issues affecting us all. This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.