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Skydiver Almost Dies, Then Sues Over Broken Fingers

By Brian Kumnick | Last updated on
A New York appellate court last week ended a lawsuit by a woman who was injured in a skydiving accident several years back. The suit was remarkable for its plaintiff's apparent lack of perspective: the injured woman sought compensation for two broken fingers, which were sustained during her instructor's successful efforts to save both of their lives when their main chute failed to deploy. Is this a case of shocking ingratitude, or is there something more going on?

We're going with "shocking ingratitude." According to facts laid out in a lower-court opinion, in 2003 Lisa Nutley celebrated her birthday by going skydiving for the first time. First-timers always jump "tandem," meaning that they are strapped to an experienced instructor who directs the jump and controls the parachute.

But Nutley's jump went sour, as the worst fear of the beginning skydiver came true: the main chute failed to open. Her instructor, though, worked to deploy a reserve chute and, after an undoubtedly terrifying interval of freefall, the two landed safely.
Except for those broken fingers, which had been fractured somewhere in the hubbub and commotion of trying not to die. Nutley reacted by suing Skydive the Ranch, the outfit that ran the excursion.

It has taken a few years, but Skydive last week got its wish and had the case dismissed. The reason: assumption of the risk.

Negligence suits like Nutley's typically accuse someone of failing to exercise due care and thereby causing injury. But participants in activities with a heightened level of danger, like contact sports or skydiving, are said to "assume the risk" of injuries caused by known hazards associated with those activities. This makes it harder to bring a successful suit if an injury occurs.

If you're looking for a textbook example of assumption of the risk, you can hardly do better than Lisa Nutley's near-death skydiving experience. Skydiving is a sport inherently associated with risk, and the fear of a chute not opening is every would-be skydiver's first concern. So when a plaintiff like Nutley suggests to a court that she was harmed by Skydive the Ranch's negligence, there's an obvious response: didn't she know that sometimes chutes don't open, and that when that happens, people get hurt?

The obvious answer -- of course she knew, everyone knows -- is the essence of the assumption of the risk defense. If you know it's dangerous, and do it anyway, the risk of injury is on you.

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