While Virginia adheres to the outdated doctrine of “Assumption of the Risk” in denying restitution to many injured athletes, other states do not share the view that “one percent and you’re out.” In cases arising here in the Commonwealth, if the injured athlete was even one percent at fault for assuming the risk of harm in a sporting event, he or she cannot recover ANY of their damages. Other states compare the fault and unsafe actions of the parties. In more modern states, if the Defendant sports facility or product maker is 90% to blame and the athlete 10%, then in those jurisdictions the plaintiff would collect 90% of the verdict for their their harms and losses.
A recent Indiana case shows that other states are successfully dealing with this outdated affirmative defense. In
“New Approach on Sports Injury Liability” the Wilson Kehoe & Winingham law firm examines this new case law. It is interesting reading. The authors note that this decision may prevent “property owners and equipment manufacturers from latching on to arguments in which they claim no duty or responsibility, thus shielding them from liability.”