What does "Assumption of Risk" mean?
In some personal injury cases, a defendant might attempt to avoid liability through the use of a defense called "assumption of risk." Under this defense, the defendant is claiming that the person who was injured assumed the risks of the activity he or she engaged in, and that the defendant should therefore not be held liable for the injury that resulted. This is typically a defense to a negligence action, where the defendant wants to avoid being found liable for negligently causing another person's injury. In order to use this defense, the injured person must have had knowledge of the potential risk of harm from the activity, and knowingly participated in the activity that led to the injury.
What types of claims involve the assumption of risk defense?
Claims where the assumption of risk defense tends to come into play include ones involving sports, hazardous recreational activities, such as sky diving, premises liability where a warning was given, claims where the plaintiff signed some form of release, and activities that include obvious dangers.
The idea behind this defense is that a person who decides to play football should know that they could be tackled. Likewise, a person who decides to go cliff jumping should be aware that the activity is one that has some inherent risks.
Express vs. implied assumption of risk
Assumption of risk comes in two broad categories, express and implied. In cases of express assumption of risk, the injured person must have expressly agreed to engage in the activity despite the risks. This is the case when someone signs a waiver. Even without expressly agreeing to engage in an activity with known risks, a person might impliedly assume the risk, as would be the case if they agree to do something that has obvious risks. If someone decided to joyride on the top of a car, it would be fairly obvious that the activity included some risk factors.
If I signed a waiver, am I out of luck?
Not always. Even in cases where someone signs a waiver acknowledging the risks involved, and agreeing not to sue in the event of an injury, it is possible to overcome the assumption of risk defense under certain circumstances. Moreover, a person or company cannot contract out of negligence.
Additionally, the defense of assumption of risk does not work if the injury that occurred was not foreseeable. For instance, horseback riding might have certain obvious risks, but if the employees of a ranch where you are horseback riding decide to play baseball near the trail, hitting balls right across where people ride, and you are knocked in the head with a ball while on horseback, it would be difficult to say that you could have predicted that injury when you agreed to ride the horse.
If you were injured in any type of accident involving someone else's negligence, contact our attorneys at Montlick & Associates to learn about your legal rights as well as what steps are necessary to protect those rights.
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