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Assumption of the Risk in Texas

In Texas, the defense of assumption of the risk is part of the general defense of comparative negligence. Those who participate in dangerous activities for sport or fun should be aware of this potential defense should something go wrong. Assumption of the risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm from a defendant’s actions. The defendant will need to show the plaintiff had actual knowledge of the risk, the plaintiff accepted the risk, and the nature of the conduct was inherently dangerous. This doctrine can arise in connection with activities such as scuba diving, rodeos, and high-contact sports.

In DeWolf v. Kohler, a woman brought a Texas wrongful death lawsuit against multiple defendants associated with a scuba diving accident. The decedent was scuba diving with a group at a shipwreck off the coast of Massachusetts. On the second day of the trip, the man was seen going into the water but never resurfaced. Only after hours of searching was the man’s body found on the ocean floor. The local medical examiner determined the cause of death was drowning, pending further study. After an autopsy, however, the cause of death was listed as myocarditis, a natural cause.

The man’s wife sued numerous defendants for wrongful death, including the dive boat, the individual who chartered it for the expedition, the network that had carried a television show with the individual who chartered the expedition. the company that trained the decedent to dive and gave him credentials, and the scuba equipment manufacturer. The boat didn’t answer the suit and was dismissed by the court. The network contested jurisdiction, and the court agreed. The dive training company filed a motion for summary judgment that was granted. The equipment manufacturer filed a motion for summary judgment that was initially denied but later reconsidered. The case proceeded to trial against the individual who had appeared on television and organized the expedition.

At trial, the jury was asked whether a wrongful act or negligence had caused the decedent’s death. The jurors unanimously agreed that it had not and that the decedent had expressly assumed the risk of injury or death by diving at the wreck. His wife appealed the judgment as to the five defendants.

The appellate court found that the trial court had not erred in dismissing claims against the boat company because a suit against a vessel is an admiralty proceeding within the jurisdiction of the federal courts. It also found there was no error in granting the network’s special appearance. The appellate court found that the motions for summary judgment on the claims based on the Death on the High Seas Act were properly granted.

With regard to the trial, the decedent’s wife argued that the trial court had failed to include two requested instructions and included a question about the allocation of responsibility. The instruction would have informed the jury about the elements of an undertaking claim. A defendant can be liable for negligence with regard to a voluntarily assumed undertaking if the defendant undertook to offer services it knew or should have known the plaintiff needed for protection, the defendant didn’t use reasonable care to help the plaintiff, and the plaintiff relied upon the defendant’s actions or the defendant’s actions increased the plaintiff’s risk of harm.

Among other things, she also argued that the jury shouldn’t have been asked to allocate responsibility for the decedent’s death and should have been instructed to ignore testimony about whether she released the defendant from liability. The appellate court affirmed the lower court’s decision.

If a loved one is killed due to a negligent undertaking, it’s important to retain attorneys with experience in proving liability. The experienced San Antonio wrongful death attorneys at Carabin Shaw may be able to help. Call our office for more information at 1-800-862-1260.

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