Assumption of risk may or may not prevent you from receiving a personal injury settlement. Your rights can vary depending on the circumstances and state laws, even if you signed a waiver or participated in an activity with inherent dangers. Signing a release form doesn’t permanently relieve the defendant of liability. At The Law Offices of Jacob Emrani, we can help pursue a personal injury settlement even if the assumption of risk is a factor in your case.
Can Assumption of Risk Prevent Me from Winning a Case?
To use assumption of risk as a defense, a defendant must prove a plaintiff knowingly engaged in a risky activity. Doing so requires showing you knew you were facing a known risk, voluntarily accepted it, and the danger was obvious and apparent. The burden of proof also falls on showing your conduct was inherently dangerous.
Assumption of risk can be expressed or implied. With “express assumption of the risk”, you’ve likely signed a contract or waiver before engaging in a dangerous activity. If this leads to an injury, it can be difficult to win a settlement. An exception would be if you signed a waiver of liability, but the waiver was hidden in the contract. In this case, your attorney could argue you weren’t aware of all the risks.
“Implied assumption of the risk” doesn’t involve an agreement. The risk of danger is typical for that type of activity. In other words, you chose to participate despite knowing the potential to be injured.
Navigating a Case When Assumption of Risk Is a Factor
However, the assumption of risk only applies to known dangers. You’re not necessarily assuming all the risk of something going wrong. Even if you express an assumption, another party can still be liable. Here are some situations with inherent risks in which you may or may not be able to seek a personal injury settlement:
- Rock Climbing: There’s always a risk of falling while using a rock climbing wall. But if there was a broken tile on the floor, a loose climbing hold on the wall, or, if you used a rope or harness that failed, you may have a claim against the rock climbing facility, a maintenance contractor, or an equipment manufacturer.
- Playing Sports: A sport that involves contact has inherent risks, whether you signed a waiver or the assumption of risk is implied. However, the protection for a defendant falls only within the normal scope of the game. If you’re injured due to someone’s dangerous or aggressive behavior that’s not a part of the game, the court can uphold your right to pursue a settlement.
- Going on an Amusement Ride: Depending on the ride at an amusement park or fair, you assume the risk of getting on it. The defense can argue you saw the ride and chose to get on. But what if it was poorly maintained or had a defective part that led to an incident in which you were injured? Another party can then face liability.
How to Prove Your Case
Even if you assumed the risk of an activity and were injured, that doesn’t guarantee the defendant won’t be liable to compensate you for losses. The general burden of proof still applies. You must show the defendant owed you a duty of care, failed to meet their obligations (breached their duty), this was the direct cause of your injury, and you suffered quantifiable losses.
The defendant can still introduce a defense claiming you assumed the risk. But your attorney can look at whether you did assume the risk of injury. And the defendant may still have been negligent in some way. State laws are another factor, especially when comparative negligence is in play.
Can Comparative Negligence Help You Win Your Case?
A comparative negligence rule provides a guideline for when both parties are at fault. So, if you were injured, the defendant can claim you were partially at fault rather than stating you assumed the risk. If you were partially negligent in ensuring your safety, you can still recover compensation for losses. The laws for calculating a percentage vary with each state.
California’s “pure” comparative negligence rule dictates you can recover compensation for the portion of damages that wasn’t your fault. If you’re found to be 40% at fault, you can pursue the defendant for an amount equal to 60% of the damages you sustained. That means if your medical bills, lost wages, and other costs related to an injury (for example, from being hit by a car while jaywalking) caused by the defendant’s negligence equaled $100,000, you could get a settlement for $60,000.
Contact The Law Offices of Jacob Emrani
Assumption of risk can complicate a personal injury case. But it doesn’t necessarily eliminate your right to a fair settlement. Our Los Angeles personal injury attorneys can determine if you knew the full risk of the activity and if the defendant was at all negligent. We’ve won millions of dollars in damages for clients over the years and can handle any type of personal injury case. To learn more and schedule your free consultation, call (888) 952-2952.