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Monday, March 2, 2015

Before You Assume the Risk—Think—What If I Did This Instead?

Assumption of the risk is one of those legal concepts you don’t hear much about these days. But it could be a useful tool in analyzing some recent events and behaviors that led to disastrous results for the person assuming the risk and sometimes others.  News stories of late seem to ignore or gloss over the risky actions that set the disasters into motion. A few recent news stories illustrate this concept.

Last week, a jury found Eddie Ray Routh, the shooter of Chris Kyle (the former Navy SEAL of “American Sniper”—of the movie and book--fame) and Chad Littlefield, Kyle’s buddy, guilty of murder. Not surprising. Routh admitted the shooting. And proving a defense of not guilty by reason of insanity is a high standard under Texas law.

But have you ever wondered what might have happened if Kyle and Littlefield, when they realized Routh was delusional or “straight up nuts,” as Kyle described Routh in a text to Littlefield as they were driving to the shooting range where their shootings occurred, had decided to take Routh for a burger and bowling or even to play paint ball instead.

I also wonder about Kayla Mueller, the young aid worker who was taken hostage by ISIS terrorists after she had gone to help refugees in the Middle East and then crossed over to Syria with her Syrian boyfriend. What if she had decided to come home instead and teach in the inner city or help at an American orphanage? She still could have been killed or injured in trying to help those less fortunate. But at least her parents wouldn’t be on national television wondering aloud why the United States hadn’t sent a Special Forces team sooner to try to rescue her.

In a recent article in the Louisville Courier Journal, the front-page story told of a teenager who shot and killed his adoptive parents and sister. Then he loaded his Mom’s SUV with a backpack of firearms (four .38 caliber revolvers, a 9mm pistol and a double-barreled shotgun) and headed to Baltimore, only to die when he opened fire on police. The mayhem he had left in his adoptive home was discovered after the shootout with police.

The article made the point the adoptive parents were good, caring people, the mother a social worker who helped troubled children. The adopted son was not considered one of those troubled kids. By all accounts he had been a quiet, respectful, church-going youngster. He had had a little disagreement with his foster parents during whom they had taken away his computer and cell phone. But everyone who was interviewed for the story was astonished that he had done such a terrible thing.

I, as one reader, was astonished the article never mentioned where the youngster had gotten all the guns. But wait, I shouldn’t be. This is Kentucky. I guess most families have a small cache of guns so their teenagers can practice with real weapons whenever they feel like it.

In all of these cases, the concept of “assumption of the risk” comes to mind. Just because you take your kids or foster kids or the whole family to church does not inoculate them from having a moment of bloodthirsty thoughts. Or from becoming homicidal if they have that tendency. And even trained experts can’t predict which of those sweet kids might have a moment of insanity or a breaking point.

I was a good, responsible kid, a polite, church-going teenager. I never considered shooting anyone. My Dad had guns and he taught me to use them.

But I, too had at least a moment or two when I considered suicide. I’m happy to say those moments did not occur when my Dad’s guns were close at hand. But how many other young people have such thoughts? If they have an easy way to act on a fleeting notion the consequences can be deadly. Leaving those weapons where someone has access is assuming the risk they will act on a crazy notion and kill themselves or others.

Using assumption of the risk to analyze a victim’s behavior might appear to be a way to blame the victim. And I guess it is in a way. In no sense does it mitigate the criminal responsibility of wrongdoers. And it’s no excuse for terrorists. But it is a concept that we who want to avoid becoming victims should think about. And also, maybe we should consider the risks we are unnecessarily assuming on behalf of good Samaritans, law enforcement or military personnel when we as civilians head off to war zones, give weapons to people we identify as “nuts” or keep guns that are not under lock and key. When bad things happen in such circumstances we’ve assumed the risk for ourselves and others.

Background Note
Assumption of the risk is a concept that originates in civil law and was a subset or type of contributory negligence. It’s pretty self-explanatory. If you walk onto the railroad tracks, ignore the train whistle, and then are run over by the train you have assumed the risk of being hit by that train. At one time, assuming the risk under some state laws was a complete bar to collecting any damages in a civil suit. But juries, and even judges on occasion, tended to not want to let a guilty defendant off. In some cases a person assumed a risk but the other party’s negligence was so great that the jury would find for the plaintiff even thought the plaintiff also was guilty of some negligence. As in the case of a driver who knows his car brakes are almost shot but he drives anyway. He can’t stop in time when another driver runs a red light. A jury is going to want to let that first driver collect from the driver who ran the red light.


As a result of juries trying to come to some sense of rough justice even if contributory negligence didn’t allow for it, the courts or the legislatures created a new doctrine: comparative negligence. This new principle provided that relative negligence could be parceled out to each according to their percentage of risk.