What is Assumption of Risk?
Various factors can impact your ability to seek damages in a personal injury case. Assumption of risk can relieve a defendant of liability in regard to negligence. This means that, if you sustained an injury after voluntarily exposing yourself to a known danger, you cannot recover damages.
Assumption of Risk Legal Definition
In legal terms, assumption of risk is a doctrine. It expresses that: A person can relieve another individual, in advance, of any obligation to exercise due care towards them. In short, this means you accept the risk of potential injury despite knowing the dangers of an activity or location.
How Does an Assumption of Risk Defense Work?
The plaintiff is seen has having freely and knowingly assumed any risk of injury, so therefore cannot receive compensation from the defendant. The defendant is also relieved of any obligation to have acted with reasonable care, since the dangers were inherent to the plaintiff’s actions and location.
Basically, you cannot seek damages if you were injured after willingly exposing yourself to a known danger. This is a common defense in premises liability cases. For example, if you see a sign that says “enter at your own risk” or “no trespassing”, signed a waiver, or engaged in an activity where hazardous materials or chemicals were present, an assumption of risk argument can be raised by the defendant.
In asserting an assumption of risk defense, the burden of proof falls on the defendant. They must prove that:
- The plaintiff knew of the risk they were facing.
- They voluntarily accepted the risk.
- The danger was obvious and apparent.
- The plaintiff’s conduct was inherently dangerous.
Preponderance of the evidence, or the facts are more likely than not to be true, is the standard of proof used in this defense.
What Is an Inherent Risk?
A risk is inherent if it can be considered integral to the activity in question. It can also not be changed, reduced, or minimized unless the basic nature of the activity is substantially altered. The defendant owes the plaintiff who engaged in that activity no legal duty. In employment law, if an employee demonstrates incompetence, another employee who is injured as a result does not assume the risk of injury. Therefore, an assumption of risk defense won’t apply.
Express vs. Implied Assumption of Risk
Assumption of risk can take one of two forms express or implied. There are key differences that can be important in making your claim and for the other party to structure their defense.
- Express Assumption of Risk: Danger or warning signs explicitly inform a person of hazardous conditions. A written agreement is often involved, which is typically a signed waiver form, such as that required to participate in a sports event, skydiving, or other risky activity. For an issue to fall into this category, it’s often decided in court by a jury verdict.
- Implied Assumption of Risk: Words and conduct can infer that the injured plaintiff assumed some risk. If it’s obvious they fully understood the possible harm an activity could result in, it can be argued they consented to the risk they took on. A close examination of the facts and circumstances of a situation is required for a defendant to prove there was an implied assumption of risk.
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At The Law Offices of Jacob Emrani, we fight for the rights of every client and can use any legal tools necessary to win your case and get you compensated. We’ve recovered millions of dollars in damages over the years and handle all types of personal injury cases. To set up your free consultation, give us a call at 888-952-2952 today
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