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Ellie Day compared getting unintentionally tackled by LeBron James to getting hit by a truck.

Ms. Day, whose husband won the PGA Championship last August, was courtside for a game between the Cleveland Cavaliers and Oklahoma City Thunder. When Mr. James dove for a loose ball in the fourth quarter, he landed on top of Ms. Day, who then crashed to the floor, injuring her head and neck. First responders immobilized her on a stretcher and transported her to a local hospital, where she was treated for concussion symptoms. She was released a few hours later and is reportedly quite sore but otherwise fine.
The couple resides in Westerville, Ohio with their children.

Assumption of the Risk

The core of this negligence defense is twofold: the voluntary assumption of a known risk. Otherwise, assumption of the risk would apply to almost any everyday activity that has some risk involved, including driving to work or taking a shower. Although it is not a complete defense in most cases, insurance companies routinely argue that the plaintiff assumed the risks in a situation in order to shift as much liability as possible away from the defendant.
At a practical level, there are three subcategories of this negligence defense, and each one has many nuances.

  • Primary: Professional athletes cannot sue their opponents for injuries they sustain during the course of play; the same logic probably applies to amateur athletes in a pickup game. Fights between contestants, especially if they occur on the parking lot after the game is over, are in more of a grey area.
  • Express: Health clubs and other organizations often require participants to sign a release. In New York, these agreements are void if the provider receives a fee from the participant. In other cases, the agreements have so much “legalese” that reasonable people cannot understand them. Waivers may also be invalid on the grounds that they are take-it-or-leave-it contracts of adhesion.
  • Implied: The above incident falls into this category. In a hypothetical lawsuit, Ms. Day could not recover if Mr. James proved that she voluntarily assumed the risk of a 249-pound man colliding with her at courtside.

In all affirmative defenses, including assumption of the risk, the defendant has the burden of proof.
The insurance company looks for any way possible to reduce the plaintiff’s damage. For a free consultation with attorneys who are on your side, contact our office. We have six locations statewide.

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