People sometimes participate in activities they know are dangerous. For example, contact sports, skydiving, rock climbing, and riding a roller coaster have inherent risks. In law, “assumption of risk” is a concept that applies when someone is hurt by participating in such an activity. This can prevent them from holding another party accountable and pursuing damages. There can be an express or implied assumption of risk.
Express assumption of risk means a person acknowledges they’re aware of the hazards associated with an activity. To do so, they may sign a liability waiver. But just because you sign a waiver, you may still be able to bring a lawsuit, especially if the claim involves a different risk than was expected.
How Does Implied Assumption of Risk Affect Your Case?
The same concept applies. A person willingly and knowingly accepted the risks of an activity they knew was dangerous. The difference is there was no written or verbal agreement. An implied assumption of risk is associated with many sporting activities. For example, a person who decides to play softball usually knows there are dangers of playing a game with a bat and a ball. There’s always a risk of being injured in such an activity.
Primary vs. Secondary Implied Assumption of Risk
There are two types of implied assumption of risk:
- Primary Assumption of Risk: An individual accepts the risks of a known hazardous activity, and that no other party has a duty to their safety. This means one cannot typically recover their losses.
- Secondary Assumption of Risk: Another party does owe a duty of care to the participant (who knows of and voluntarily accepts the risk). Damages may be recovered if negligence or an intentional act led to them getting hurt.
Implied Assumption of Risk and Negligence Claims
Just because you accepted some risk does not mean you are ineligible for a partial recovery. This is especially true with comparative negligence. The concept of comparative fault has been part of California state law since 1975. A victim can therefore recover damages even if they’re partially to blame for an accident (even if they’re 99% at fault). However, in states that use a modified comparative fault doctrine, plaintiffs 50% or more at fault cannot recover damages.
Most personal injury cases in California can apply comparative fault. Common examples include car accidents, bicycle accidents, and slip and fall accidents as well as premises liability, product liability, and medical malpractice cases. To apply comparative negligence law, the plaintiff’s award will be reduced by a percentage equal to their degree of fault. If they were 25% at fault, then the defendant’s liability will be reduced to 75%, and the plaintiff’s damages award will be reduced by 25%.
In a personal injury trial, a judge or jury will decide the percentage of fault on the plaintiff. It must be proven they are negligent and this negligence was a substantial factor in causing them harm. Total damages are determined in a separate finding. But each defendant will owe the plaintiff an amount equal to the percentage of damages they’re responsible for.
Can I Still File a Lawsuit?
Implied assumption of risk only involves dangers inherent to a given activity. If you’re injured playing contact sports or engaging in any other risky activity, you could have a valid claim if:
- Someone willingly caused your injury, whether it was a risk or not.
- An accident resulted due to failure to maintain a piece of equipment.
- The defendant had a duty of care to prevent a specific accident/injury.
Hire a Personal Injury Lawyer
When you’ve been injured participating in any activity, it’s important to have a personal injury lawyer. Numerous laws and legal theories may be used to build your case. Implied assumption of risk does not mean you aren’t entitled to damages. The Law Offices of Jacob Emrani has a great deal of experience fighting for clients, negotiating with insurance companies, obtaining settlements, and winning trials. If you’ve been hurt due to someone else’s actions or negligence, call 888-952-2952 for a free consultation with our Los Angeles personal injury attorneys.