Pursuing compensation for a personal injury accident can be complicated. The defendant’s insurance company and legal team will look for any way to blame you.
The adjuster’s goal is to minimize or eliminate any payout on behalf of their insured. The other side might assert various defenses, including the assumption of risk.
Understanding the assumption of risk in personal injury cases is crucial as you must have evidence of the contrary.
Don’t pursue a personal injury case alone. Let the experienced team at Gladstein Law Firm, PLLC, help.
What Is Assumption of Risk?
When a defendant alleges an assumption of risk, they assert a legal defense. The defendant claims that the plaintiff knowingly placed themselves at risk.
Therefore, the defendant argues that they are not liable. Assumption of risk can be divided into two categories—express and implied.
Express assumption of risk happens when you acknowledge the risk before the accident occurs. An example is a written contract or liability waiver that says you are assuming the risk of any injuries by partaking in this particular activity.
An implied assumption of risk is when you know there’s a risk of injury, but you decide to expose yourself to the risk anyway. The main difference is the lack of a written agreement before the accident occurred.
Assumption of risk is associated with events or activities with known hazards or dangers. Some examples include:
- Scuba diving,
- Theme parks,
- Cliff jumping,
- Horseback riding,
- Sports events,
- Gyms, and
You may also see the assumption of risk used in cases where “enter at your own risk” or “no trespassing” signs are present or with any activities involving dangerous substances or chemicals.
If the defendant can prove the assumption of risk, the court could dismiss your personal injury case. Most people understand that any of these activities have some danger associated with them, even if they don’t believe an accident will happen.
However, if there is an accident and you’re injured, your case could be in jeopardy. Hiring a lawyer is crucial if there’s an assumption of risk allegation.
Proving Assumption of Risk in a Personal Injury Lawsuit
The defendant will argue either express or implied assumption of risk. You could lose your entire case without a strong argument against their defense.
In some situations, a successful assumption of risk defense might cost you only a portion of your compensation. That’s because of pure comparative negligence.
Kentucky is a pure comparative negligence state. That means injured plaintiffs can still collect a portion of their damages, even when they are partially responsible. If the assumption of risk makes you 30% at fault, you could still collect 70% of your damages. If you are 60% at fault, you could collect 40%.
A skilled attorney can present a strong case on your behalf and successfully argue against an assumption of risk—even when you signed a liability waiver.
For example, the defendant might not have fully explained all associated risks with the activity. Your attorney will also look for evidence of gross negligence or recklessness on the defendant’s part.
If you can prove the defendant acted negligently or recklessly, it could open them up to liability despite their allegation of assumption of risk.
What Is Gross Negligence?
Gross negligence is negligence that extends beyond the normal range of being careless. It is when a defendant’s actions show extreme disregard for other people’s lives and safety.
If your attorney can prove gross negligence against the defendants, you could be entitled to extra compensation for your injuries. This compensation is called punitive damages.
To prove gross negligence, your attorney will attempt to show that the defendant’s actions were not consistent with how a reasonable person would behave in a similar situation. A simple mistake while driving can result in an accident.
Gross negligence goes beyond a mistake. Instead, it might involve drag racing other vehicles at a high rate of speed. The defendant knew the risk of harming others but did it anyway.
When there’s an assumption of risk allegation, gross negligence on the part of the defendant can eliminate any potential protection the defendants have.
In some situations, the defendants might have legal immunity because of the waiver forms or an applicable statute. Examples include airlines, certain medical professionals, transportation companies, and government employees.
However, any protection typically applies only in cases involving ordinary negligence. Evidence of gross negligence will allow your case to move forward.
How a Lawyer Can Help
The best defense to an assumption of risk argument is a strong offensive. Having a strong litigator on your side could be the difference between no compensation and a decent settlement. The lawyers at Gladstein Law Firm have experience arguing affirmative defenses, such as an assumption of risk.
The law also allows for some exceptions to affirmative defenses, such as the assumption of risk. For example, you were engaged in a dangerous activity that could cause harm. If something unexpected and unrelated to the hazardous activity caused your injuries, then the defense’s arguments won’t apply.
For example, imagine you are headed up to go skiing. While standing in the parking lot, a car hits you. A car accident is not part of the danger you assume when going on the ski slopes.
Another exception is when the defendant intentionally does something that harms you. Imagine in a skydiving accident that the defendant deliberately loosened your harness. The parachute subsequently malfunctioned, causing you to crash. That’s not an average associated risk of skydiving.
Contact Our Kentucky Attorneys
We strongly recommend talking to a lawyer rather than trying to handle your claim independently. Understanding assumption of risk in personal injury cases is complicated.
It’s best to leave the complex legal theories to the lawyers. You should be worried about getting better, not trying to understand how to argue against an assumption of risk defense.
You’re working with the best when you hire Gladstein Law Firm, PLLC to represent you. Our attorneys have years of experience and are strong negotiators.
With a reputation for success and a passion for helping our clients, your case is in good hands when you hire us. Contact Gladstein Law Firm today to schedule a consultation and learn more about how we can help.