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Baseball decision: Inherent risk no guarantee of protection for businesses

 Memorial Stadium in Garden City. Photo courtesy Scott McDaniel.

The Idaho Supreme Court’s decision not to institute the “Baseball Rule” to immunize Idaho’s stadiums from injury liability will garner attention. But the second part of the decision affects business owners more.

On that issue, the Supreme Court held that “primary implied assumption of risk” cannot be used as a defense in Idaho. That means there is no blanket immunity for any business with inherent risks just because a patron chooses to participate.

Justice Jim Jones, in the majority opinion, quoted a former Idaho Supreme Court decision that held that “contributory negligence is not to be a complete bar to recovery; instead, liability is to be apportioned between the parties based on the degree of fault for which each is responsible.” That means in Idaho,  courts should weigh whose fault an event is situation-by-situation.

Boise business attorney Thomas J. Lloyd III said the decision will not affect any businesses that have been granted protections from some liability by the Idaho Legislature such as ski resorts, outdoor guiding operations and sport shooting businesses. It could, however, affect any number of businesses that have inherent risk, such as gyms or restaurants, when it comes to lawsuits.

Juries can still decide that someone should know the inherent risk involved in activity, such as choking at a restaurant. But there is no automatic protection that could stop a choking lawsuit from going to trial, he said.

Lloyd said that businesses should not be concerned about the obvious risks for any activity their customers agree to participate in.

“This doesn’t necessarily increase the burden of a business owner to highlight the obvious risks inherent in their business to patrons,” Lloyd said.

Instead, businesses should be more worried about posting signs or giving oral warnings of any risks that may not be completely obvious to their customers — or a jury. Almost every business has inherently risky aspects, Lloyd said. Business owners are responsible for warning customers about them.

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