Around the 4th of July, we were at a friend’s house for a party. During that party, my pre-teen daughter smashed her own thumb between a couple of 8 pound weights, breaking the tip of her thumb. Can I sue my friend? The answer is “probably” (you can sue almost anyone). But, the better question is: would I be successful in such a lawsuit? That answer, depending on the facts, is “probably not,” due to the legal doctrine of “assumption of risk.”
Nebraska Statute allows for the affirmative defense of assumption of risk.[1] That statute says that, under certain circumstances, the defendant may not be liable for the harm that occurred because the injured person knew of the risk involved.
An affirmative defense means, essentially, that the defendant is admitting that something happened for which he could otherwise be held liable. An example that most people are familiar with (on the criminal side of things) is the “insanity defense.” Basically (over simplified), in such a case the defendant admits he killed the person but says he should not be held responsible because he is/was insane.
In the case of my daughter’s broken thumb, my friend would likely defend against the lawsuit saying he should not be held liable for various reasons. As part of that, he may argue that even if he could be held liable because it happened on his property he should not be held liable because my daughter knew that there was a risk involved in playing with those weights and did it anyway.
In order to win with the defense of assumption of risk, my friend will have to prove: (1) that my daughter knew of the specific danger that could happen, (2) understood the danger, and (3) voluntarily exposed herself to the danger that caused her broken thumb.[2] While there may be some argument of whether my pre-teen daughter knew that playing with those weights had risk or whether she really “understood” the danger, there is no question that she voluntarily exposed herself to the risk. No one forced her to do it, and she was just playing and having fun.
While I would likely not sue my friend simply because the injury was fairly minor and he is my friend (in addition to the fact that he is also an attorney at the same law firm as me), there would be plenty of obstacles that could prevent a successful recovery.
If you think you might have a case, contact the experienced trial attorneys at the Goosmann Law Firm, in our Omaha, Sioux City, and Sioux Falls offices.
[1] Neb. Rev. Stat. § 25-21,185.12, https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.12
[2] Pleiss v. Barnes, 260 Neb. 770 (2000).