Why Can’t Sue A Knife Company If You Choose To Juggle Knives?

Posted on behalf of Anderlini & McSweeney LLP in Personal Injury on March 20, 2014.

Legal casebooks are filled with freakish, unpredictable and bizarre fact patterns; many far more ridiculous than you could ever possibly dream up. The law of negligence and personal injury needs to be flexible enough to handle unpredictable scenarios while still setting reasonable expectations about how much care is exercised to protect people from unforeseeable events. The waste-bin of legal history is also filled with cases at the other extreme, injuries sustained from bumps on bumper cars, tackles in games of football, and golfers struck by golf balls (etc.)  Such injuries are entirely unsurprising, and the risk is unavoidable once you elect to participate.

One of the oldest and most famous ‘predictable injury’ cases, Murphy v. Steeplechase Amusement, involved a lawsuit over an injury sustained on an amusement park ride named “The Flopper.” The ride consisted of a large motor driven belt designed to carry riders up an inclined plane, until they would eventually tumble down to the bottom. Mr. Murphy apparently injured his knee on the flopper when a ‘sudden jerk’ threw him to the floor. Famous jurist Benjamin Cardozo, sitting on the New York Court of Appeals, wrote that the “fall was foreseen as one of the risks of the adventure.” There would have been no point to the whole thing if the risk had not been there and Murphy accepted the obvious and necessary dangers of the activity by voluntarily riding The Flopper.

Little has changedin the last 85 years. If you take a flop on the Flopper you probably don’t have a strong case.

In California, this idea goes by the name of the ‘assumption of risk‘ doctrine. Assumption of risk relieves a defendant of any duty to protect the plaintiff from risks that are inherent in an activity in which a person chooses to participate. (Knight v. Jewett (1992) 3 C4th 296, 308.)  The doctrine also applies to occupational hazards under the name ‘the firefighter rule.’ If you choose to run into burning buildings for a living, you can’t turn around and sue the fire department if you get burned.  As long as the danger is considered an ‘integral’ part of the activity (i.e. removing the risk would fundamentally change the nature of the activity or deter participation) assumption of the risk applies.

This rule has led to courts wading into detailed analysis of what is, or is not, an ‘integral’ risk to all manner of sports and recreational activities (touch football, baseball, snow skiing, sailing, jet-skis, ice skating, inter tubing, horseback riding, weight lifting, attending burning man, etc.).


While a baseball player clearly assumes the risk or getting hit by a baseball, he surely doesn’t assume the risk of getting punched in the face by another player. (Though the same might not be true of a hockey player). Were do we draw the line? One starting point is that participants in most sports and recreational activities have a duty not to intentionally injure other participants. Incidents of intentional intent to injure are rare, though not unheard of, and clearly falls outside of any assumed risk.

Participants are also liable where their behavior rises beyond mere carelessness into acts so reckless as to be totally outside the range of ordinary activity int he sport. Finally, defendants are held accountable where they act affirmatively to increase or misrepresent the inherent risks.

There are ways to overcome assumed risk defenses, don’t assume that there is nothing you can do.

About Anderlini & McSweeney LLP

Anderlini & McSweeney LLP is a boutique law firm located in the heart of the peninsula in the San Francisco Bay Area. www.anderlinimcsweeneylaw.com
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