Dangerous activities and risky behavior may affect a personal injury claim. Activities like skydiving, rollercoasters, and riding all-terrain vehicles come with certain risks. In these situations, a defendant in a personal injury case may raise an assumption of risk defense. The defendant can argue that the plaintiff knowingly engaged in risky behavior and assumed the risk of their own harm.
Many defendants raise assumption of risk in personal injury cases, but it is not always easy to prove. Plaintiffs may still recover financial compensation for their injuries.
Definition of Assumption of Risk
The assumption of risk doctrine1 is a legal defense used in personal injury claims. It argues that the plaintiff — the victim in the case — engaged in some inherently dangerous activity and is wholly or partially responsible for their own injuries.
Defendants employ this defense to limit their financial liability in the case. By arguing that they are not solely responsible for the damages, they may avoid payment of some of the plaintiff’s harm even when they were negligent. When this is sufficiently proven, a defendant may pay only part of the plaintiff’s total damages or avoid liability altogether.
Examples of Assumption of Risk
A few practical examples demonstrate what this legal doctrine means:
- A person goes to a baseball game and sits in foul ball territory in the hopes of catching a ball. While the fan is eating their nachos, a fast foul ball hits them in the head. Many courts have held that baseball patrons assume the risk of sitting in this part of the ballpark.
- A plaintiff sues a ski resort after breaking a leg in a fall. The plaintiff argues that the artificial snow was improperly made, but the ski resort maintains that the plaintiff assumed the risk of skiing, an activity known to be potentially dangerous.
- A bachelorette party decides to go skydiving. All participants signed waivers before diving. An unexpected wind gust occurs while the bride is parachuting to the ground, causing her to land in the trees and suffer serious injuries. The skydiving company relies on its waiver and the inherent risks of skydiving to argue it is not liable.
These scenarios demonstrate how the assumption of risk defense is used, but there are many nuances to these cases. An injured victim should never assume they have no recourse if they were hurt in a dangerous activity. They may still be entitled to significant compensation.
Types of Assumption of Risk
Every lawsuit is different, and there are multiple types of assumption of risk arguments. Which applies will depend on the particular circumstances of the case.
Primary Assumption of Risk
A primary assumption of risk occurs when a person participates in a hazardous activity knowing that no other person is responsible for their safety. The injured person willingly takes on this risk for some personal reason. The most common example of a primary assumption of risk is with organized sports such as football, basketball, and baseball. Athletes assume the risk of injuries.
Even in these situations, some circumstances still justify personal injury damages. For example, imagine that a football player receives a traumatic brain injury in a game. Later inspection of the helmet reveals it was damaged during its manufacture and that is why the player was hurt so badly. A lawsuit against the helmet’s manufacturer for negligence could still be appropriate.
Secondary Assumption of Risk
If a person engages in risky activities but another person has some responsibility to protect them, this is considered a secondary assumption of risk. For example, if a person knowingly uses a recalled product and is injured by it, the product’s manufacturer still has an obligation to protect the consumer. The plaintiff’s damages might be reduced by their portion of the assumption of risk, but they are likely still entitled to some compensation.
Many states use a comparative fault standard in cases like these. Under this doctrine, a jury must weigh the actions of both parties and assign a percentage of blame attributed to each. This percentage can affect the amount of compensation owed to the plaintiff. Secondary assumption of risk principles are commonly employed in making this comparative negligence determination.
Express Assumption of Risk
Businesses or groups that offer inherently dangerous activities may require written waivers before a person can participate. This release waiver warns a person of the known and potential dangers of the activity. It also requires them to sign away their rights to sue if injured. Common situations where this occurs include:
- Horse riding adventures
- Skydiving
- Organized sports
- Gym memberships
- Go cart and other motor vehicle racing activities
When a person signs a release waiver, it becomes much more difficult to sue a defendant. However, the waiver may have loopholes, or the defendant’s conduct may have been so egregious that it does not apply. A qualified attorney can review the waiver to determine what rights an injured victim still retains.
Implied Assumption of Risk
An implied assumption of risk happens when a person participates in inherently risky activity but never signs an express waiver. This applies if any reasonable person would understand the nature of the activity to be dangerous. In these situations, assumption of risk is implied.
Comparative Negligence in Personal Injury Cases
The assumption of risk doctrine dates back to old English law and has long been a part of the legal system. Over time, the comparative negligence doctrine has become more popular. Assumption of risk principles are critical to comparative negligence determinations in Louisiana and Texas.
The Texas comparative fault2 law allows a person to recover compensation if they were 50% or less at fault for the accident. If the jury finds the plaintiff 51% or more at fault, the plaintiff cannot recover anything. Assumption of risk principles are used to help assign the fault percentage in these cases.
The Louisiana comparative fault3 law uses a different standard. Juries still assign a percentage of fault to each party. However, the plaintiff’s damages are simply reduced by the percentage of fault the jury attributes to them. For example, imagine the jury says the plaintiff’s skiing accident was 60% their fault. Under Louisiana law, the plaintiff’s total damages are reduced by 60%. Under Texas law, the plaintiff could not recover anything.
Assumption of Risk May Affect a Personal Injury Case
Assumption of risk defenses might limit a plaintiff’s damages, but they may still be entitled to recovery. Every injured victim should speak with a personal injury attorney to understand their legal rights.
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