Assumption of Risk
If you’ve been involved in an accident or are otherwise engaged in legal operations, the phraseology can cause some confusion. You’re reading through paperwork and, suddenly, you’re frantically searching the web for an assumption of risk definition. In fact, this could be how you stumbled across our useful guide here today.
What is assumption of risk? How does it affect personal injury cases? What is an assumption of risk example? Let’s look!
What is Assumption of Risk?
As a legal principle, assumption of risk presents a threat to plaintiffs because it can prevent them from winning personal injury cases. In many cases, the assumption of risk defense has stopped injured victims from getting the compensation that they deserve.
In short, the phrase describes a case whereby the defendant cannot be held liable for the accident because the plaintiff was aware of the risk. However, it gets more complex because there are two main types of assumption of risk.
Express Assumption of Risk
If the plaintiff agrees that the defendant should not be held liable in the event of an accident, this is an example of express assumption of risk. For example, it could be that the plaintiff signed a contract with the defendant stating this very fact. Even if the plaintiff doesn’t fully read the contract, it’s often binding in court if it contains their signature. The contract could have a small clause that states that the defendant is not held accountable for injuries.
What happens if somebody uses the express assumption of risk defense in court? The court will assess the document and decide whether it covers the claim. If the assumption of risk is sufficient, it could lead to a rejected case for the injured plaintiff.
As a plaintiff, don’t think that an express assumption of risk means that you’re automatically not entitled to compensation either for yourself or a loved one. In law, there are certain circumstances where the defendant cannot use this legal principle. For example, it doesn’t apply when the plaintiff doesn’t have the capacity to understand the contract; this includes the mentally ill and those under 18 years of age.
Furthermore, express assumption of risk is not usable to cover reckless conduct or intentional torts. Finally, it does not apply in cases where public policy is violated. With these assumption of risk examples, the defendant cannot use the legal policy and expect to avoid accountability.
If you have any questions about express assumption of risk, we recommend getting in touch with the fantastic legal team at The Injury Firm. For instance, you may have signed a contract before an event only to then get injured; if you’re not sure of where you stand, legal representation is key. What’s more, we advise contacting The Injury Firm before signing anything after an accident. It’s always best to seek help rather than making a mistake that is difficult to rectify.
Implied Assumption of Risk
As the name suggests, implied assumption of risk doesn’t involve the plaintiff explicitly signing a document. Yet, the defendant may state that the plaintiff accepted the risk simply by partaking in the activity. Once again, we can break this down into two sections:
Primary
Primary assumption of risk is often present when there is a known risk attached to a certain activity. As an example, F1 drivers (race car drivers) would struggle to claim compensation after an accident in a race because they know of the risk before ever climbing into a car.
Secondary
On the other hand, secondary assumption of risk occurs when the plaintiff is warned about risk even if they didn’t sign a document. After hearing about the risk, the plaintiff still partakes in the activity.
Let’s say that the defendant and the plaintiff were at a bar and the defendant decides to drive home after consuming alcohol. The defendant notes that they probably shouldn’t drive, but the plaintiff gets in the car for a lift home despite their knowledge of the defendant being over the legal drink-drive limit. The assumption of risk defense would protect the defendant in this case because the plaintiff knew the risk of accident when they decided to get into the car.
Comparative Negligence and Burden of Proof
In recent years, the comparative negligence system has replaced assumption of risk in many locations. Essentially, comparative negligence aims to designate blame accordingly to one’s actions in the accident. In a car accident, for example, it’s rarely the case that one person is entirely to blame. Consequently, victims receive compensation for the part of the accident for which they were not responsible.
If the victim is 30% responsible for the accident, they can still claim 70% of the damages. However, they don’t receive 100% of the damages because they were partly to blame for the accident. In many locations, lawmakers have found that comparative negligence allows for more refined and exact outcomes.
In terms of the burden of proof, this is entirely on the defendant and their legal team. They will need to prove that the danger was obvious or that the plaintiff signed a document that removed all accountability for the defendant. While express assumption of risk is proven through contracts, implied assumption of risk is proven through conduct and words. As you can imagine, the second form is harder to prove for defendants.
The Injury Firm - Personal Injury Attorneys
After a personal injury, some defendants will try the assumption of risk defense. What is assumption of risk? Depending on its form, it suggests that the plaintiff knew about or agreed to the risk involved in an activity. In some cases, it protects the defendant and means that the injured plaintiff is left without compensation.
We’ve seen assumption of risk examples as well as assumption of risk definitions; all that’s left to say is that The Injury Firm can assist your case. Before you sign anything or get too deep into legal proceedings, contact our team and we’ll protect your legal rights (as well as your case!).
