Assumption of Risk Defense
Accidents are an unfortunate part of life. In some cases, accidents are freak occurrences that couldn’t have been predicted. In other cases, accidents result from a person's own willingness to participate in dangerous activity. These situations can give rise to a legal defense known as "assumption of risk."
What Is Assumption of Risk?
The doctrine of assumption of risk is an affirmative defense that may be available to some defendants in personal injury lawsuits. The law has determined that certain activities come with an innate risk, and plaintiffs who voluntarily participate in these activities—and become injured as a result—cannot sue based on a negligence theory. In other words, the defense holds that people who choose to do certain dangerous activities can’t turn around and hold others liable when they’re injured as a result of those activities.
In order for a defendant to invoke the assumption of risk defense, the plaintiff must have:
- Known that there was a risk of the same sort of injury that the plaintiff actually suffered, and
- Voluntarily took on that danger (assumed the risk) in participating in the activity.
Assumption of risk can either be express or implied. An express assumption of risk is often made in writing, usually in the form of a signed waiver or contract. However, an express assumption of risk doesn't have to be in writing, it can also be made verbally.
An implied assumption of risk, on the other hand, is not written or stated out loud. Rather, a plaintiff acted in a way that reflected an understanding of the risk and a willingness to take part anyway. An example of implied assumption of risk is if an amusement park patron stood and watched a roller coaster for several minutes before deciding to go on the ride. The patron's observation of the roller coaster suggests an understanding of the inherent risks and a decision to assume those risks.
Other Examples of Assumption of Risk
A classic example of the assumption of risk doctrine is attending a baseball game. It’s understood that when you go to a baseball game, there’s a risk that a ball may be hit into the stands. Courts have held that patrons of baseball games assume the risk of being hit by a baseball when choosing to participate in the activity.
Other examples include ultra-hazardous activities like skydiving and paragliding, roller coasters that flip upside-down, and areas with clearly-posted signs like "Danger" or "Enter at Your Own Risk." A plaintiff participating in a dangerous activity or choosing to ignore posted warning signs can be deemed to have assumed the risks inherent in the activity.
Exceptions to the Rule
There are also some exceptions to the assumption of risk defense. A plaintiff must actually suffer the same sort of injury for which the plaintiff assumed the risk. Essentially, the injury must be "foreseeable." For example, a plaintiff who goes rock climbing assumes a risk of falling. However, if a plaintiff is standing at the base of a rock climbing mountain and is run over by a car that veered off the road, that is not a foreseeable sort of injury based on the activity, and the assumption of risk doctrine would not likely be a valid defense.
Also, the assumption of risk defense will not protect a defendant from liability for reckless or intentional behavior. For example, if a plaintiff's fall while rock climbing was caused by the defendant intentionally tampering with the climbing rope, then an assumption of risk defense won't likely be an option.
Legal Help with Assumption of Risk Defense
If you are a defendant in a personal injury case, there may be various legal defenses available to you. To be sure you have all of the most important information, consider speaking with an experienced personal injury defense attorney to understand your options.