In this article, we’ll explain what assumption of risk is, explore its origin, describe cases when it’s commonly used and list the different types and exceptions of this doctrine.
What Is Assumption Of Risk?
The assumption of risk doctrine limits the defense’s liability in a personal injury case when the plaintiff was injured while voluntarily taking part in an activity with a known risk. In other words, if you are suing someone for damages because you got hurt, they could make the point that though you were injured, you were aware of the potential dangers. If the court agrees that you assumed the risks associated with the activity, they could avoid being held liable.
Assumption of risk is an affirmative defense in tort law, meaning it’s an argument that, if proven, overcomes the legal duty and consequences of the defendant’s unlawful actions. A tort is an action or civil wrong that results in an injury or loss. In tort cases, the person who intentionally committed the act is legally liable. Tortious acts are intentional and result in things like:
- Invasion of privacy
- Injury
- Financial loss
- Negligence
- Emotional distress
Types Of Assumption Of Risk
There are two types of assumption of risk:
- Express assumption of risk: Express assumption of risk typically comes in the form of a signed agreement, such as a liability waiver, but you can make the assumption verbally as well.
- Implied assumption of risk: Implied assumption of risk occurs when the plaintiff acted like they understood an activity’s risk of injury and voluntarily took part in it anyway.
The Origin Of The Assumption Of Risk Doctrine
The California Supreme Court first established the assumption of risk doctrine (3 Cal.4th 296) in 1992 during a case known as Knight v. Jewett. The plaintiff in this case was pursuing damages for personal injuries they sustained while playing touch football, which they claimed were due to the defendant’s negligence. The defendant had knocked the plaintiff over during the game and stepped on their finger. California’s superior court decided to focus on legal duty in this case, stating that the defendant shouldn’t be held responsible for not protecting the plaintiff from the risk of harm while they were participating in a potentially dangerous activity.
The doctrine goes on to act as a complete bar for the defendant’s liability, including any costs and damages incurred during the plaintiff’s recovery. Knight also established that aside from the primary assumption of risk, some cases involve a secondary assumption of risk. A secondary assumption of risk exists when the defendant owes the plaintiff a “duty of care,” where the risk is the defendant’s breach of responsibility.
Ultimately, the court reached its verdict after determining that the defendant’s conduct was acceptable within the rules and risks of the sport, and they dismissed the plaintiff’s claim as a matter of law.
When Defendants Use An Assumption Of Risk Defense
Defendants can successfully use the assumption of risk defense in a number of situations, such as:
- Cases where you were clearly aware of the potential risks involved.
- If you voluntarily, either in words, actions or a written agreement, accepted the risks.
- Premises liability cases where there is an obvious and inherent risk. For example, extreme recreational activities, waiver and release provision disputes, activities that involve dangerous substances or cases where there was a warning sign, such as “enter at your own risk.”
Surprisingly, you can find one of the most popular examples of the assumption of risk doctrine in baseball. When you attend a baseball game, there’s an understood risk that a ball could fly into the stands and hit you. Courts have held that attendees knowingly assume this risk when they choose to go to a game.
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Exceptions To The Assumption Of Risk Doctrine
There are some situations when an assumption of risk defense isn’t appropriate. Namely, the plaintiff needs to have suffered from a “foreseeable” sort of injury that they assumed the risk for when they took part in the activity. An example of this would be if the plaintiff went rock climbing and assumed the risk of falling or being hit by a rock, but then a car hit them while they were standing at the base of the mountain.
Additionally, a defendant can’t use an assumption of risk defense if their behavior was intentional or reckless. For example, they couldn’t apply this defense if the defendant was intentionally messing with the plaintiff’s climbing rope, causing them to fall.
Contributory And Comparative Negligence
In some personal injury suits, one party isn’t completely innocent while the other isn’t completely guilty. Instead, both parties involved could have reasonably contributed to the incident. The rules that govern these situations are known as comparative and contributory negligence. Depending on the state, there are two major ways that these rules can affect a personal injury lawsuit.
The rules of comparative and contributory negligence state that the jury must assign each party a percentage that represents their contributory negligence, regardless of the state. These rules examine the comparative fault of each party and then decide whether the defendant is responsible for damages based on the results. For example, a jury could say that a jay walker was 70% responsible for being hit by a car because they weren’t following traffic laws, while the driver that was speeding and hit the plaintiff was only 30% liable.
Some states require the defendant to cover the percentage of damages that they were found liable for, while other states only hold defendants liable if the jury decided their responsibility for the accident exceeded 50%. Using the example above, the defendant could either have to pay 30% of the damages or none at all, depending on the state the accident occurred in.
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Florin|Roebig: Personal Injury Attorneys
If you or a loved one have been injured in an accident and you’re wondering if the assumption of risk defense can be used against you, an experienced attorney can help. The law firm of Florin|Roebig can evaluate your case, examine the particular risk and explain your legal options. Call us today for a free consultation.
