Understanding Assumption of Risk
Bill Allen | May 6, 2022 | Personal Injury
The assumption of risk doctrine is a defense some parties assert in personal injury cases. The party being sued claims that the injured person “assumed the risk” of the activity that caused their injury. Therefore, the argument goes, the injured party is responsible for their damages.
For example, you assumed the risk that you could be hurt while swimming in a hotel pool. Therefore, if you sustain an injury, the hotel might not be liable for your damages.
A person may assume the risk through an expressed assumption or implied assumption. Expressed assumption of risk generally applies when the injured party signs a waiver of liability before participating in an activity. Implied assumption of risk occurs when the injured party knows the risk and voluntarily takes part in the activity.
Assumption of risk might be a defense in some personal injury lawsuits, but it is not an absolute defense. There are exceptions to the theory of assumption of risk.
When Does Assumption of Risk Apply in Personal Injury Cases?
Generally, an at-fault party raises the assumption of risk defense when the injured party signs a liability waiver. The waiver contains explicit information about the risks involved in a specific activity. The injured party signed the waiver acknowledging they understood the risk and released the other party from liability for injuries and damages.
The assumption of risk may be used in cases where the injured person clearly understood the potential risks but acted anyway. For example, signs were posted warning people of dangerous chemicals on the property. The signs stated that you enter at your own risk, but you do so despite the warnings.
Attending sporting events is a common example of the assumption of risk. For example, the people in the stands at a hockey game or baseball game know that a puck or ball could fly into the stands. However, they choose to attend the game and sit in the stands despite the risk.
Exceptions to the Assumption of Risk Defense
An at-fault party cannot use the assumption of risk as a defense for intentional acts, reckless behavior, and gross negligence. For example, the assumption of risk would likely not apply in a case involving a roller coaster accident when the operator knew the safety belts were damaged but operated the ride without warning riders of the danger.
The risk of danger must be a foreseeable risk for the assumption of risk defense to apply. For example, a person attending a baseball game may assume the risk that a ball could fly into the stands and injure them. However, the person could not foresee that damaged flooring in the bathroom would cause them to fall and break their arm.
Child injuries may be another example of an exception to the assumption of risk. A child may not have the capacity to understand the inherent risk involved in an activity. Therefore, the child might not be held to the same standard as an adult when deciding whether the child assumed the risk of injury or harm for specific conduct.
Florida’s Comparative Fault Law and Assumption of Risk
More than one party might be responsible for the act or omission that led to the injury in some personal injury cases. Therefore, comparative negligence could apply.
Contributory fault is different from the assumption of risk. The theory of comparative fault assigns damages based on a party’s fault for causing an accident or injury. Each state has comparative negligence laws.
A handful of states use contributory fault as an absolute bar to recovery. If the injured party has any blame for the cause of their injury, they cannot recover any money for their damages. That is true even if the injured party is 1% to blame for the cause of an accident and the other party is 99% to blame.
Other states use a 50 or 51% bar to recover for contributory negligence. If the injured party’s fault is above the bar, they cannot recover any money for damages.
The remaining states adopted a pure comparative negligence standard, including Florida. Florida’s comparative fault law does not bar recovery of damages, even if the injured party is 99% to blame for the cause of their injury. Each party bears the financial liability for damages in the same proportion of their fault.
For example, suppose you were involved in an accident. The jury awards you $250,000 for your damages.
However, the jurors also assign 52% of the blame for the accident to you. Therefore, your compensation would be reduced by 52%, or $130,000.
Seek an Attorney for Legal Advice
Allegations of assumption of risk and comparative fault can significantly reduce the amount you receive for a personal injury claim. You can protect yourself by never admitting fault for causing an accident and seeking legal advice from a personal injury lawyer as soon as possible after an injury.
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