Getting hurt in an accident can upend your life. Instead of going about your usual routine, you must deal with doctor's appointments, insurance claims, and medical bills. It's an overwhelming situation for anyone to handle.
However, pursuing action against the person or company responsible for the accident is more complex when it involves an assumption of risk. “Assumption of risk” means a plaintiff willingly engaged in the activity that harmed them despite knowing there was a potential risk of harm to them. When a person willingly participates in such an activity, they are “assuming the risk” that they might get hurt. Assumption of risk can significantly affect the outcome of a personal injury case.
Here, you will learn about assumption of risk and how it applies to personal injury law.
An Overview of Assumption of Risk
Assumption of risk reduces the defendant's liability if the plaintiff sustains injuries while voluntarily participating in an activity with known risks. That means if you sue another person or a company for compensation after an accident, they might argue your injury is your fault because you knew about the potential danger. The defendant might not be liable if the court agrees you assumed the risk by participating in the related activity.
Assumption of risk is an affirmative defense in personal injury cases. Proving the plaintiff assumed the risk means a defendant might avoid legal consequences for their misconduct.
There are two types of assumption of risk – express assumption of risk and implied assumption of risk.
Express Assumption of Risk
An express assumption of risk happens when a person signs a waiver before engaging in dangerous activities. The person signing the waiver acknowledges the potential danger but willingly participates anyway.
Liability waivers are common in establishments such as recreational facilities and gyms. Typically, they include clauses preventing civil action against the establishment for any injuries that occur on the premises. However, some circumstances allow a lawsuit even with a signed express assumption of risk agreement.
For example, you might sign an express assumption of risk contract without knowing about all potential hazards. Using a trampoline park comes with obvious risks. You can hurt yourself in a fall or from bouncing into another person. A hidden danger exposes you to potential injury. The owner might know about an exposed spring or frayed netting but not repair it. If you get hurt by it, the owner might be liable, even though you signed a waiver.
Implied Assumption of Risk
An implied assumption of risk involves knowingly engaging in a dangerous activity. Although there isn't a verbal or written agreement, the willing participant knows about the risks but chooses to proceed.
For example, football is inherently dangerous. Any player can get hurt. Someone might not sign a waiver, but it's assumed they know about the risk of injury if they decide to play.
- Primary Implied Assumption of Risk: A primary assumption of risk applies to a person who accepts the risk of participation, knowing the other people involved don't owe a duty to prevent harming them. An example might be if you attend a baseball game and a foul ball hits you in the head. You can't pursue legal action because you knew about the potential dangers when you chose to attend.
- Secondary Implied Assumption of Risk: Secondary implied assumption of risk means another party owes a duty of care to avoid causing injury, and the participating person knows about the risks but voluntarily accepts it. For example, bungee jumping is dangerous. However, the company providing the activity owes participants a duty of care. The injured party might have a claim if they get hurt due to the company or an employee's negligent conduct.
How Defendants Use Assumption of Risk as a Defense
A defendant might use an assumption of risk defense in a personal injury case. Common scenarios include:
Premises liability cases with inherent and obvious risk, such as a construction zone with warning signs or extreme recreational activities
Plaintiff's voluntary acceptance of the risk, whether written or verbal
Civil matters where the injured party had a clear awareness of the potential dangers involved.
Exceptions to Assumption of Risk
Some specific circumstances don't allow defendants to use the assumption of risk defense. A plaintiff must sustain a foreseeable injury for which they assumed the risk by participating in the activity. That means the defendant could be liable if the plaintiff gets hurt by a danger they didn't know about during the activity.
Assumption of risk also doesn't apply if the defendant recklessly or intentionally causes someone's injury. For example, the owner of a rock climbing wall facility can't use the defense if they intentionally mess with the rope, causing the customer to fall.
How Comparative Negligence Affects Personal Injury Cases
Sometimes, one person isn't solely liable for an accident. The injured party might also be at fault. When that happens, the plaintiff might recover less compensation than necessary to cover their medical bills and other losses.
Pure comparative negligence allows a judge or jury to reduce a plaintiff's monetary award by their percentage of fault. That means if you have $100,000 in losses, but the jury determines you're 20 percent liable for your injury, the most you can recover is $80,000.
Compensation Available in a Personal Injury Case
The source of compensation will depend on the circumstances. For example, if you get hurt on someone else's property, you could hold the owner liable by filing a claim with their insurance company.
Whether you file a claim or lawsuit, the money you receive might compensate you for:
- Loss of enjoyment of life
- Hospitalization, rehab, prescriptions, and other expenses
- Pain and suffering
- Emotional distress
- Past and future lost income
- Scarring or permanent loss of limb
- Damage to personal property
Punitive damages are also recoverable in a lawsuit. You must show clear and convincing evidence that the defendant acted with wanton or willful negligence, recklessness, or a conscious disregard for others' rights.
Contact a Personal Injury Lawyer Today
Assumption of risk can be a confusing concept to figure out while handling a personal injury case. You should not pursue legal action without help from an experienced New York personal injury lawyer, so contact us now at 212-240-9465 to get the wheels of justice spinning for you!
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