Assumption of Risk Defense

Accidents are an unfortunate part of life. In some cases, accidents are freak occurrences that couldn't have been predicted. In other cases, accidents result from a person's own willingness to participate in a dangerous activity and assume the known risk of injury in doing that activity. These situations can give rise to a legal defense known as "assumption of risk."

This article provides a brief overview of the assumption of risk.

What is Assumption of Risk?

The doctrine of assumption of risk is an affirmative defense. It may be available to some defendants in personal injury lawsuits.

The law has determined that certain activities come with an innate risk. Plaintiffs who voluntarily participate in these activities and become injured as a result cannot sue based on a negligence theory. In other words, the defense holds that people who choose to do certain dangerous activities can't turn around and hold others liable when they're injured as a result of those activities, especially if they knew of the risk of harm and assumed the risk by doing the activity anyway.

In order for a defendant to invoke the assumption of the risk defense, the plaintiff must have:

• Known that there was a risk of the same sort of injury that the plaintiff actually suffered
• Voluntarily took on that danger (assumed the risk) in participating in the activity

Assumption of risk can either be an express assumption of risk or an implied assumption of risk. An express assumption of risk is often made in writing. It's in the form of a written agreement, such as a signed waiver or contract, but an express assumption of the risk doesn't have to be in writing, as it can also be made verbally.

An implied assumption of risk is not written or stated out loud. Rather, a plaintiff acted in a way that reflected an understanding of the risk and a willingness to take part anyway. An example of an implied assumption of the risk is if an amusement park patron stood and watched a roller coaster for several minutes before deciding to go on the ride. The patron's observation of the roller coaster suggests an understanding of the inherent risks and a decision to assume those risks by participating in the recreational activity.

Other Examples of Assumption of Risk

A classic example of the assumption of risk doctrine is attending a baseball game. It's understood that when you go to a baseball game, there's a risk that a ball may be hit into the stands. Courts have held that patrons of baseball games assume the risk of being hit by a baseball when choosing to take part in the activity.

Other examples include ultra-hazardous activities like:

• Skydiving
• Paragliding
• Roller coasters that flip upside-down
• Areas with clearly posted signs like "Danger" or "Enter at Your Own Risk"

A plaintiff participating in a dangerous activity or choosing to ignore posted warning signs can be deemed to have assumed the risks inherent in the activity.

Exceptions to the Rule

There are also some exceptions to the assumption of risk defense. In most states, a plaintiff must actually suffer the same sort of injury for which the plaintiff assumed the risk. The injury must be foreseeable.

For example, a plaintiff who goes rock climbing assumes a risk of falling, but if a plaintiff is standing at the base of a rock climbing mountain and is run over by a car that veered off the road, that is not a foreseeable sort of injury based on the activity. The assumption of risk doctrine would not likely be a valid defense.

Also, the assumption of risk defense will not protect a defendant from liability for reckless or intentional behavior. For example, if a plaintiff's fall while rock climbing was caused by the defendant intentionally tampering with the climbing rope, then an assumption of risk defense won't likely be an option.

Legal Liability for Assumption of Risk

States vary in how they apply legal liability in cases involving the assumption of risk defense. Some states apply the comparative negligence approach. This requires that damages will be reduced by the percentage of fault attributable to them. States' approaches to negligence claims can include:

• Pure contributory negligence
• Pure comparative fault
• Modified comparative fault approaches

To learn more about the different types of comparative negligence, please visit FindLaw's article titled "What is Comparative Negligence?"

Primary Assumption of Risk

Primary assumption of risk occurs when the plaintiff:

• Understands the inherent risk of an activity
• Chooses to take part in the activity while understanding the inherent risk
• Is injured in a manner consistent with the inherent risks of that activity

In these cases, the defendant's negligence, if any, is not a factor in the plaintiff's recovery. The law assumes that the plaintiff accepted the risks associated with the activity.

Primary assumption of risk is often applied in cases involving sporting events and recreational activities. For instance, a professional football player who sustains a normal football-related injury cannot sue their team for negligence. The player willingly participated in the activity, aware of its inherent risks.

Secondary Assumption of Risk

Secondary assumption of risk occurs when the defendant has a duty of care to the plaintiff, but the plaintiff knowingly encounters a risk created or enhanced by the defendant's breach of that duty. This could be either:

• A reasonable decision (reasonable secondary assumption of risk)
• An unreasonable one (unreasonable secondary assumption of risk)

Depending on the jurisdiction, the plaintiff's recovery could be reduced or barred in these cases.

A classic example of secondary assumption of risk might be if a ski resort fails to mark a dangerous area on a slope. A skier who chooses to ski down the slope anyway, knowing about the unmarked hazard, is assuming the secondary risk.

Assumption of Risk in Medical Malpractice

Assumption of risk can also play a role in medical malpractice cases. When a patient consents to a medical procedure after being informed of its risks, they are assuming those risks. This doesn't absolve healthcare providers from their duty of care. If a patient is injured because of a doctor's negligence, such as a surgical error, the assumption of risk defense would likely not apply, even if the patient signed a liability waiver.

Some risks are inherent in medical procedures. A poor outcome does not always mean negligence occurred. To prevail, the injured party would need to prove that the healthcare provider breached the standard of care in their treatment.

Role of Insurance Companies and Liability Waivers in Assumption of Risk

In many cases, individuals may sign liability waivers before participating in an activity. These waivers are a form of express assumption of risk. They can be a powerful tool for insurance companies and defendants to limit their liability in personal injury claims.

However, not all liability waivers are enforceable. Courts may refuse to enforce waivers that are overly broad, ambiguous, or that involve activities of public interest. Moreover, a waiver will not protect a defendant from liability for reckless or intentional behavior.

Get Legal Help with Assumption of Risk Defense From an Experienced Personal Injury Lawyer

If you are a defendant in a personal injury case, there may be various legal defenses available to you. To be sure you have all the most important information, consider speaking with an experienced personal injury attorney to understand your options regarding the injury claim.

Personal injury lawyers will help review your legal duty and applicable legal doctrines that may apply to your case. They will observe the situation and the activity's nature and assess your duty of care in the case. Contact an experienced personal injury attorney to understand your options today.