Assumption of risk is a legal concept that prevents an injured person from recovering damages in a personal injury case. Commonly used in tort law, this defense is based on the idea that a plaintiff knowingly acknowledged the risks associated with an activity. As a result, they cannot hold the defendant liable for any resulting injuries.
Furthermore, the burden of proof lies on the defendant. They must establish that the plaintiff knew the activity’s risk to successfully assert the assumption of risk defense. In addition, the plaintiff must have consciously decided to engage in the activity despite those risks.
Suppose you suffered from injuries while performing a dangerous recreational activity. Hiring a reliable personal injury lawyer to handle your case is advisable. An attorney’s guidance will help you determine whether the assumption of risk is a valid defense for your claim.
Law firms usually provide free consultations to potential clients seeking to file a personal injury claim or lawsuit. Your initial discussions will tackle the facts of the case, including the nature of the injury and damages incurred.
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Types of Assumption of Risk
Different types of assumptions of risk exist, including express, implied, primary, and secondary. Plaintiffs and defendants need to understand the various assumptions of risk defenses. These defenses can significantly influence the case’s outcome and dictate whether a plaintiff is eligible for damages.
Express assumption of risk
Express assumption of risk occurs when a person explicitly consents to assume the risks inherent in a situation or activity. It happens through signing a liability waiver or a written agreement. The document must state that they affirm participation in the activity despite the risk of injury.
An example is when a person signs a liability waiver before participating in a bungee jumping or skydiving activity. By signing the waiver, the person agrees that the defendant will not be responsible for any injuries that may arise from the activity.
Implied assumption of risk
Implied assumption of risk occurs when a person engages in a risky activity without expressly agreeing to assume its risks. The activity’s circumstances imply that the participants are aware of and acknowledge the risks.
The implied assumption of risk has two categories: primary and secondary.
Primary implied assumption occurs when a person knowingly participates in a dangerous activity and assumes its risks. In such cases, the defendant does not owe the victim a duty of care and releases them of liability.
Examples of primary assumptions of risk include getting hurt while playing baseball or any contact sports. Another example is a racecar driver getting into an accident while participating in a race.
In contrast, a secondary implied assumption of risk or contributory negligence occurs when an injured person is partially liable for their injuries. It is because their negligence or carelessness contributed to their harm.
In such cases, the defendant may argue that the plaintiff contributed to their injuries by failing to take appropriate precautions. For example, a person willingly rides a roller coaster despite knowing the activity’s risk of harm. Regardless, the roller coaster operator still owes a legal duty of care to the plaintiff.
An injured person can still pursue compensation in cases involving a secondary assumption of risk. But they must establish that the other party’s negligence directly caused their injuries.
Examples of Assumption of Risk in Personal Injury Cases
The assumption of risk rule can influence a defendant’s liability in personal injury cases. As mentioned, it dictates whether a defendant is responsible for any injuries a person may sustain after an incident.
For the assumption of risk defense to apply, the defendant must establish the following:
- the plaintiff was aware of the risk
- the plaintiff voluntarily assumed the risk; and
- the hazard was inherent in the activity
Defendants may use the assumption of risk defense to prevent a plaintiff from recovering damages. They do so by demonstrating the plaintiff participated in an activity despite knowing the risks involved.
Insurance companies may raise the assumption of risk defense to deny an injured victim’s claim in a car accident.
For instance, a driver was speeding at the time of the incident. The insurance company may argue that the victim assumed the risk of getting into an accident. They may argue that the driver was aware of the risks involved in his actions but still chose to act in that manner.
Similarly, suppose a driver was intoxicated while operating a motor vehicle. The insurance adjusters may establish that they knew driving under the influence increases the possibility of an accident. Likewise, they impliedly assume the risks of any resulting accident or injuries.
Assumption of risk as a legal defense also applies in medical malpractice cases to minimize or eliminate a patient’s claim. Defendants can argue that a patient knowingly consented to a medical treatment or procedure despite being informed of risks and complications.
By consenting to the treatment, the plaintiff assumes the risk associated with the medical procedure. Thus, they may not be eligible to pursue damages in the event of an injury or adverse outcome.
For example, suppose a patient consents to a surgical procedure. Moreover, they acknowledge the risks associated with the surgery, including infections, bleeding, and anesthesia-related complications. They may not be eligible to recover compensation if adverse complications occur during or after the procedure.
Similarly, if patients consent to take medication, they assume the risks of side effects. Suppose an injury or other implications associated with the prescription takes place consequently. They may not be able to recover damages for their losses.
Slip and fall
Slip and fall accidents may fall under premises liability claims. Under this rule, a property owner is liable for injuries caused by their negligence. Consequently, plaintiffs may recover damages due to the defendant’s negligence.
Property owners can only raise the assumption of risk defense if an obvious hazard injures the plaintiff. For example, suppose an unmarked step or a large pothole in a parking lot caused an injury. The defendant could argue that the injured party should have known the conditions and taken steps to avoid them.
Similarly, suppose a person walks across a snow-covered parking lot instead of using a designated sidewalk and sustains injuries. The property owner might not be liable for the plaintiff’s injury because they walked across a known hazard.
Contact sports and dangerous activities
The assumption of risk rule is most common in cases involving spectator games and contact sports.
For example, players in football, hockey, and boxing tournaments usually assume the risks of the sport as it involves physical contact. Suppose they sustain injuries during a game or match. They might be unable to recover compensation for their losses because of the nature of the activity.
Similarly, spectators at sporting events also assume risks, such as being hit by a stray ball or puck. Suppose a spectator suffers from injuries while attending a game. The assumption of risk doctrine may apply if the person knows of the inherent risks associated with the sport.
Assumption of Risk and Comparative Negligence
Throughout the years, comparative negligence rules replaced the assumption of risk in determining liability in personal injury cases. Often, it is limited to cases involving sports and other recreational or dangerous activities.
Comparative negligence is a tort principle courts use to reduce the compensation an injured victim can recover in a personal injury claim. Courts determine the damages awarded to plaintiffs based on the percentage of liability they contributed to the incident.
In contrast, defendants use the assumption of risk doctrine to escape liability and bar plaintiffs from recovering compensation completely. Thus, many jurisdictions adopt comparative negligence as a more fair and balanced approach to apportioning fault.
Under comparative negligence, the percentage of fault a plaintiff contributed to the accident reduces their compensation. For example, the court determined the plaintiff to be 30 percent at fault for their injuries. Thus, they can only recover 70 percent of the total damages.
Comparative negligence also considers the plaintiff’s knowledge and awareness of the risks of an activity. However, contrary to the assumption of risk, it does not prohibit them from recovering damages. Instead, the court considers it when assigning fault between the parties involved.
Defenses Against Assumption of Risk
In cases where a defendant raises the assumption of risk defense, plaintiffs may employ other legal doctrines to counter it.
However, the success of these defenses depends on specific factors of each case and the strength of their evidence. Your best approach is to hire a lawyer knowledgeable in personal injury law. They can help you identify and pursue the appropriate defenses for your case.
Foreseeability is a crucial element in defending against the assumption of risk rule. For the defense to succeed, the defendants must establish the plaintiff understood the dangers of a particular activity. Moreover, they must prove these risks were inherent or foreseeable.
Foreseeability means that a reasonable person would be able to anticipate the risks of a particular situation. If these risks were not foreseeable, the assumption of risk might not apply to their case.
For example, a patient may not file a case of medical malpractice if they sustained injuries considered as an inherent risk of a procedure. Suppose they developed scarring after having knee replacement surgery. They won’t be able to recover compensation as it is a foreseeable effect.
However, if they suffered a stroke during the procedure, they may recover damages for their injury.
A written agreement, such as a waiver, is only valid if the plaintiff has the legal capacity to understand its implications. Meaning the assumption of risk can only apply if the plaintiff’s mental and physical abilities allow them to understand the risks involved.
For example, a person participates in a contact sport and sustains injuries. However, they had a mental disability impairing them to fully understand the game’s risks. The defendant may not use the assumption of risk as a defense because the plaintiff could not have voluntarily assumed those risks.
This rule also applies to individuals who are not of legal age or minors.
Violation of public policy
Public policy refers to laws or principles that serve the best interest of the public. Suppose a contract violates public policy. It becomes unenforceable, and any assumption of risk provision within the written agreement is void.
For instance, a contract requires employees to waive their right to workers’ compensation benefits in exchange for employment. The contract is not valid as workers’ compensation laws exist to protect employees.
A disclaimer waiving those rights would go against public policy. As such, the assumption of risk provision would not be enforceable.
Assumption of risk does not apply to personal injury cases involving intentional acts. Intentional acts refer to a defendant’s actions that intend to cause harm to other parties.
For example, a person intentionally hits another with a baseball bat during a game. The assumption of risk defense will not apply. It is because the plaintiff did not assume the risk of being intentionally hit with a baseball bat. In addition, the defendant’s intentional act goes beyond the inherent risks associated with the activity.
In cases of intentional acts, the plaintiff may pursue a claim for intentional torts. It includes battery, assault, or intentional infliction of emotional distress. These types of claims do not rely on the assumption of risk defense. It is because the defendant’s behavior is not under the inherent risks of a situation.
Did you know?
The state of Oregon abolished the implied assumption of risk defense and has adopted a modified comparative negligence system.
Seek Representation by a Personal Injury Lawyer
The assumption of risk defense applies to various types of accident cases, such as premises liability, medical malpractice, and car accident claims. However, it is essential to know the legal doctrine should not be used to escape liability for an incident.
Suppose you were involved in a case where a defendant used the assumption of risk defense. Hiring a personal injury attorney is your best option. Lawyers have the necessary experience to effectively guide you through the legal process. They can help you deal with complex defenses like the assumption of risk. Knowing the right way to fight against it is crucial.
The Personal Injury Center can help you find the best lawyer for your case. It has a vast network of personal injury lawyers that can guide you through the legal process.
Recover compensation with the help of The Personal Injury Center. Let us connect you with a skilled personal injury attorney today.
FAQs on Assumption of Risk
Can the assumption of risk be used as a defense in cases of strict liability?
Yes. However, the defendant must establish that the plaintiff acknowledged the risk from the alleged product defect, even if it was unreasonable.
Will the assumption of risk still be valid if the plaintiff was acting under duress?
No. The assumption of risk only applies to cases where the plaintiff voluntarily and knowingly assumed the dangers of a particular activity.
Can I still file an accident claim a year after the incident?
The time limit for a personal injury claim varies by state. Some states provide victims a maximum of two years to file a claim. In contrast, others implement a time frame as long as six years.