The assumption of risk defense is common in personal injury law. It is the defense available to the negligent party that helps push some or all of the blame on the plaintiff. Assumption of risk will typically arise after a plaintiff knowingly or voluntarily assumes risk of harm connected to the negligence of the defendant. If the plaintiff has truly assumed such risk, then he or she cannot recover any damages for the harm that resulted from the defendant’s conduct – even if that defendant was reckless. But, the assumption of risk defense does not always work, and it is important that you have a qualified personal injury attorney representing your claim to ensure that this overly popular defense is not successful.
What is Need to Establish Assumption of Risk?
In order to prove the assumption of risk defense, the defendant would need to show that:
- You had actual knowledge that there was a risk, and you were involved in the activity anyway.
- You voluntarily accepted the risk – either through an expressed agreement or implied consent by your conduct (such as you weren’t forced into participating in the activity).
It is necessary to prove that the danger was obvious, which means that the defense will need to show that a reasonable person would have known the danger existed, and you participated in the activity anyway. Assumption of risk is also a common defense used to help push the case into contributory negligence – that is, your reward could be reduced based on how much you were “at fault” for the incident.
Can You Sue if There is a Signed Contract Stating You Would Not Sue for Injury?
The assumption of risk is used to prevent defendant liability and outright deter the injured party from filing a lawsuit for injuries that they knowingly accepted as a risk. However, express assumption of risk is a defense that is based on contract law. If there is a valid contract, you may not be able to bring a lawsuit. But, the contract must be in complete accordance with the law and not have any flaws that make it invalid, such as:
- The contract was in violation of public policy.
- The plaintiff did not have the capacity to understand the contract that he or she was signing.
- The contract covered intentional acts.
- The contract was signed by a minor instead of a legal adult.
Express Versus Implied Assumption of Risk
When you file a claim and the defense uses the assumption of risk defense, they will typically state whether it was expressed or implied assumption. These are very different terms, and it is important to understand how they could affect your claim.
Express Assumption of Risk – This is where you accept the risks involved by an expressed agreement that is usually in written form. You will have a written agreement with the defendant and have signed it. For example, if you go skydiving, you may be required to sign a liability waiver stating that you will not hold the instructor liable for your injuries.
Implied Assumption of Risk – This is when there is no written agreement, but it is obvious that there is a risk and, by engaging in the activity, you are assuming that risk. For example, you see signs that state there is a potential sinkhole ahead, but you proceed into that area anyway. If you were injured in that fall, you would have assumed the risk by ignoring the signs and proceeding in the area anyway.
Will Assumption of Risk Affect My Case?
In some cases, the assumption of risk is nothing more than a poor attempt to defend someone’s negligent actions. But, in other cases, assumption of risk can reduce your compensation or force you to pull your claim altogether. It is important to speak with a personal injury attorney to assess your case and also determine if there is a possible assumption of risk issue.
To explore your options for compensation, contact the Gladstein Law Firm, PLLC today. We offer free consultations and can help you recover from your injuries. Schedule your appointment now by calling us toll-free at 800-991-0474, or fill out our online contact form with your legal questions.