2024 Guide on Assumption of Risk in Personal Injury Claims

2024 Guide on Assumption of Risk in Personal Injury Claims

You can institute a civil lawsuit when you sustain an injury due to someone else’s negligence or intentional wrongdoing. The essence of the lawsuit is to recover monetary compensation for your damages. However, the law allows the accused to defend themselves. 

The defendant can introduce the assumption of risk as a defense. This legal concept limits a victim’s ability to demand a claim for losses if they willingly accept the risk of injury. 

This article explains what the assumption of risk entails and how it affects one’s right to receive compensation. 

Understanding Assumption of Risk

The assumption of risk is a legal concept that can affect one’s right to pursue a personal injury claim if one sustains injuries through another person’s negligence or omissions. 

Some defendants use the assumption of risk as a defense in a personal injury case. They will try to establish that you willingly exposed yourself to the likelihood of harm. If they prove their argument, you will lose the chance of recovering compensation for your losses. 

How Assumption of Risk Works

Some activities carry imminent risks. For instance, you risk falling if you go rock climbing. A fly ball can also hit you if you attend a baseball game. 

You willingly take the risk of participating in an inherently dangerous exercise. Since you intentionally and willingly take the chance of harming yourself, it becomes challenging or impossible to hold a defendant accountable for your harm. 

This legal doctrine applies to evident dangers. You cannot recover monetary compensation if you have the reason to believe you could sustain an injury in a particular way by being involved in a given activity or action, and you still go ahead with it. You will bear the cost of the consequent losses.

This doctrine applies only to inherent harm or those you could logically foresee occurring by engaging in the exercise. For instance, you assume the risk of falling if you go rock climbing. However, if there were broken tiles on the floor on the walkway to the rock climbing wall and you fell due to them, you did not envisage the danger of that injury type. 

The Relationship Between Express and Implied Assumption of Risk

Assumption of risk occurs in two ways—express and implied.

You can expressly assume the risk of something happening by signing a waiver or contract. For instance, if you go rock climbing, the climbing facility managers may ask you to consent to a waiver absolving them of liability if you fall. Thus, you are expressly aware of the risk and still choose to proceed.

Conversely, the assumption of risk can be implied. You do not sign a waiver or contract agreeing to accept some dangers, but it is evident you intentionally participated in a high-risk exercise with the awareness of the probable danger that could result from it. 

You assume its risk by willingly deciding to participate in the dangerous venture. For instance, if you decide to go on a ride at a local fair, you see the ride before getting on and assume the risk of riding it. 

However, it is not necessarily true that you cannot pursue a claim for compensation after signing a contract or waiver to assume the risk of injury expressly. State laws vary on when individuals or institutions can pass the risk to you. 

Furthermore, assuming some risk does not mean you have assumed every risk of something going wrong. In the example of the broken tiles mentioned above, you can still claim and obtain compensation even if you sign a contract absolving the rock climbing managers of liability for falls. 

What Assumption of Risk Means for Your Personal Injury Claim

When a defendant uses the assumption of risk as a defense, they want to evade paying compensation for damages. 

You must establish the following four elements in a typical personal injury claim to receive compensation:

• The at-fault party owed you a duty of care (they had the responsibility of acting logically or prudently)
• They failed in their duty of care by acting unreasonably concerning your safety
• Their failure directly caused your injuries
• You suffered damages which you can obtain financial compensation for

A defendant may still attempt to introduce a defense alleging you assumed the risk of injury after successfully proving these elements. 

However, the issue will ultimately boil down to whether you assumed the given risk of harm and whether the defendant’s negligence was still a factor in the harm. The court will also consider whether the risk was implied or expressed and the stance of your state laws. 

“Determining your rights in matters where the assumption of risk is a factor can be challenging. That is why liaising with a reputable local personal injury lawyer is advisable to enlighten you on your options and help you build a vibrant argument to recover the maximum compensation available,” says personal injury attorney Ronny Hulsey of Smith Hulsey Law. 

The Nexus Between Comparative Negligence and Assumption of Risk

Comparative negligence has replaced the old legal concept of assumption of risk in instances where the assumption is implied in numerous states. 

Comparative negligence rules outline what transpires when the two parties instigate the harm. Instead of arguing you assumed the risk, the defendant will show how you were also negligent concerning your safety. Thus, you are partially responsible for the consequent mishap and harm. 

Comparative negligence rules allow victims partially responsible for their injuries to receive compensation for their damages still. However, the compensation amount will be reduced based on your level of fault. 

For instance, if you are 30 percent liable for the injuries while the defendant is 70 percent responsible, the defendant will cater to 70 percent of your losses. Thus, if you recorded $200,000 in losses, the defendant will only pay $140,000 in compensation. 

Conclusion

Assumption of risk is a complex legal doctrine. It is almost impossible for a layperson to navigate through it successfully. Hence, you need a skilled personal injury attorney to help you interpret your case and explain how this legal concept affects it. 

Further, some states have not adopted a comparative negligence system. Hence, speaking with a local attorney will help you understand what applies in your jurisdiction and how to maximize the process for your gain.