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How One East Bay Park Visitor Overcame an ‘Assumption of the Risk’ Defense in Her California Negligence Case

When you are injured due to someone’s else negligence, you may find yourself facing an argument that, despite that negligence, the other person isn’t liable – and not entitled to compensation – because you “assumed the risk” of the kind of danger that ultimately hurt you. There are many circumstances, though, where you can successfully overcome an “assumption of the risk” defense and win your case. To get the help you need to do that, be sure you’re represented by a skilled San Mateo injury attorney.

A Bay Area woman’s injury was an example of an “assumption of the risk” case. D.W. was walking her dog at the Tilden Regional Park in the East Bay Regional Park District when she was hurt. Another park visitor’s dog, which was a very large breed, wandered over to where D.W. was and, although the dog’s owner told his dog to sit, the dog did not sit. Eventually, the dog returned to his owner but, as he did so, he collided with D.W., causing her to fall, break her leg and dislocate her ankle.

D.W., having been seriously hurt, sued the owner, A.W., for the harm she suffered. The injured woman accused the large dog’s owner of negligence that caused her accident. The injured woman also shrewdly added an additional assertion: that A.W. was negligent per se because he violated an East Bay Regional Park District Ordinance that said that allowed dogs at the park to be off-leash, but required that owners maintain control over their off-leash animals at all times.


For those not familiar with the term, negligence per se is a legal concept that says that, if you were hurt due to a defendant’s violation of a statute, ordinance regulation, proof of that violation can help your case as the law will presume that a defendant who violated the law acted negligently.

A.W., however, asserted an affirmative defense and sought to have D.W.’s case thrown out based on that defense. A.W. argued that, by visiting a park where dogs were allowed to be off-leash, the injured woman assumed the risk of the sort of accident that hurt her.

Encountering out-of-control dogs was not part of the risk assumed

The appeals court, however, ruled that A.W.’s position was not an accurate reflection of the way that the “assumption of risk” defense worked and that D.W. was entitled to continue pursuing her case. While a person who visited a park like Tilden assumed the risk of encountering off-leash dogs, such people did not assume the risk of encountering out-of-control off-leash dogs. As the court put it, “as a result of the duties and expectations this ordinance establishes, we cannot conclude that being knocked over by an unleashed dog with which a person has sought no interaction is an inherent risk of walking in this portion” of the park.

What you can learn from D.W.’s case is that, with the right legal arguments, you can overcome your opponent’s affirmative defenses in a dog bite or other injury matter and still get the compensation you deserve. Part of doing that effectively, though, is having the right legal representation. Rely on the knowledgeable San Mateo injury attorneys at the Law Offices of Galine, Frye, Fitting & Frangos. Our attorneys have many years’ experience helping injured people navigate the legal system to achieve positive outcomes. To set up a free consultation with one of our helpful attorneys, contact us at 650-345-8484 or through our website.

Personal Injury

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