Assumption of Risk: You Know What They Say About An Assumption's Affect On You And Me

Posted By Michael R. Varble || 2-May-2014

In today's blog post, I discuss the concept of the assumption of risk and its affect on personal injury litigation. The assumption of risk is a concept that is connected to comparative fault which I discussed in the last blog and it is something that we attorneys take into consideration when we assess your case. If you have been injured in an accident, we are always going to look at what you were doing and how it had an impact on your accident. What did you know about the circumstances before the incident occurred and where you voluntarily engaged in an activity that you knew had risks of injury associated with it.

What is the assumption of risk ? Well, it is a concept that a where a plaintiff voluntarily engaged in an activity involving a risk of harm and the plaintiff knows the risk of that harm and fully understands it, a plaintiff's damages will be reduced to the extent to which those damages were caused by plaintiff's own conduct. A jury is tasked with the responsibility of assigning blame to the plaintiff and the defendant and determining what percentage each was responsible for an incident. Knowledge of the risks involved in an activity are always key and it is defendant's burden to show that the plaintiff assumed the risk and that the plaintiff's damages should be reduced as a result.

Prior to 1975, an injured person's failure to appreciate and know the danger of a risk involved in an activity would be considered contributory negligence and it would bar an injury party from recovering. In addition, assuming the risk involved in an activity relieved a defendant of its duty of care and precluded recovery by an injured party. The assumption of risk doctrine, which is similar to contributory negligence, and predated comparative negligence which I discussed earlier this week, no longer precludes a plaintiff from recovering for injuries he or she suffered.

Assumption of risk is, essentially, a voluntary encounter with a known risk. Swimming with sharks can be dangerous - right ? Of course. Sooo, what we look at is what was known to the plaintiff at the time of his or her participation in an activity. What do we look at ? Well, has the plaintiff done this type of thing in the past, has the plaintiff been injured doing something like this in the past, is the plaintiff experienced with this activity, was the plaintiff provided with instructions prior to participating in a particularly dangerous activity and the list goes on. I am sure many of our readers have signed a waiver prior to participating in a sport, or have read the back of a lift ticket when they went skiing. Those documents that talk about all of the risks associated with skiing, driving a go-kart, riding a motorcycle, scuba diving and so on are intended to document you - the plaintiff's - understanding of the risks associated with doing whatever it is that you are about to do. The documents are also considered waivers if you sign them, but that is another legal concept for another blog sometime in the future. If you as a plaintiff have fully assumed the risk of harm associated with an activity, the defendant is relieved of the duty to exercise reasonable care for your benefit and, as a result, the defendant cannot be held liable for your injuries.

As I am sure you can imagine, the assumption of risk doctrine can be applied to nearly any sporting activity. This concept doesn't apply to risks over and above those which are reasonably foreseeable for an activity. An example of this would be if a football player hits another player out of bounds well after a play has ended and injures the other player or performs something else that is illegal in the course of the game. Another example of the assumption of risk would be a motorcycle accident. If you are involved in a motorcycle accident and you failed to wear safety gear, the defendant who hit you is certainly going to argue that you first of all assumed the risk by riding the motorcycle which everyone knows is more dangerous than a car and, second, that you knew there were additional risks involved if you failed to wear safety gear. The defendant will also argue, if you failed to wear safety gear, that you failed to mitigate your damages too because safety gear like a helmet, boots, gloves and a sturdy jacket could have prevented or minimized some of your injuries.

So what does all of this mean to you ? Well, understand what you are getting yourself into before you engage in a dangerous activity. Ask questions if you don't understand what is going on. Be careful and wear all protective safety gear even if you look ridiculous. That being said, if you do get hurt on a zip-line or on a snowmobile and you are not sure if you have assumed a risk involved in the activity, give us a call and we can discuss it with you further to help you evaluate your case. As I always say, I hope our readers do not have to use our services, but people will always be people and courts, police, insurance companies and lawyers will always have jobs as a result. So please be careful and, if you are unfortunate enough to be injured, give us a call so we can assist you with our case.

Categories: Personal Injury

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