Assumption of the risk is a defense brought by a Defendant to diminish or defeat an injured person’s recovery. The assumption of the risk defense entails the Defendant proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to the danger. The assumption of the risk defense derives from the common law. Under the common law, if the injured person assumed the risk, it was a complete defense.
There Is No Assumption of the Risk For Jones Act Seaman
Assumption of risk is not a defense to a suit brought by Seaman under the Jones Act. The master of the vessel has the duty to provide a safe appliances or a safe place in which to work. The master/ vessel can not assert that the Seaman assumed the risk of an unsafe appliance or unsafe place to work.
Instead, comparative negligence applies to Seaman. Assumption of risk and contributory negligence on part of seaman are considered as part of comparative negligence.
If a breach of a duty owed by the Seaman to the employer was the sole and proximate cause of his injury, then recovery would be barred, not because of contributory negligence, but rather because no negligence of employers was in the chain of causation. But if the Seaman was injured because of his employer’s negligence which combined with his own neglect of duty to his employer, then doctrine of comparative negligence would be applicable.
Comparative fault is also applied in strict liability action for unseaworthiness, in personal injury actions for negligence under Jones Act , and actions brought under Death on the High Seas Act
Seaman cannot be found comparatively negligent when following order to complete task in specific manner. Also, Seaman do not assume the risk of avoidable weather risks.
Reasonable Prudent Person Standard
The determination of whether the injured Seaman has been comparatively negligent is made by judging conduct of seaman against that of reasonably prudent person under the circumstances. The seaman’s duty to exercise reasonable care is slight. A Seaman has no duty to find the safest way to perform work. But rather, the duty to provide for a safe course of conduct lies primarily with the vessel owner.
This article is not legal advice. I am simplistic here in order to achieve clarity. Any resemblance to actual Jones Act Seaman events or Jones Act cases is purely coincidental. Your Jones Act case or circumstance may differ from those described herein. If you are a seriously injured seaman, you need to hire a seasoned Jones Act Lawyer in California. Whenever you bring a court case for damages, your credibility is always at issue. If you get caught in a lie or half-truth you will lose your case. Always, always tell the truth.