There are instances when people suffer injuries when partaking in potentially dangerous activities like skydiving and rock climbing. This could also be if you slip and fall on a wet surface despite a prominent warning sign that says “slippery when wet.” When it comes to legal defenses against personal injury claims in such instances, the assumption of the risk legal doctrine often comes into play. So, what is assumption of risk, and how does it affect personal injury cases?
Assumption of Risk in Personal Injury Cases
Defense attorneys commonly use the assumption of risk doctrine in personal injury claims and lawsuits. If they can successfully prove that claimants were aware of and accepted the risks in question, claimants may lose their right to receive compensation for their injuries and other damages. The logic behind this is that if you knowingly and willingly put yourself in a position that might cause a potential injury, you cannot file a claim or a lawsuit for the same injury.
Assumption of Risk and Negligence
If you file a personal injury case that hinges on someone else’s negligence, you need to prove four crucial elements.
- The other party owed you a duty of care.
- He/she/they breached the duty of care.
- The breach resulted in an accident that led to your injuries.
- You suffered damages because of your injury.
Assumption of risk revolves around the first element – duty of care. The idea is that a person who is aware of an injury’s risk and willfully acts in a way that he/she risks the injury, then the person cannot hold a defendant liable for the injury that follows. If a defense team succeeds in negating the duty of care element on the part of a defendant, it becomes nearly impossible to get the compensation you seek.
The Standard of Proof
Unlike in criminal cases, where the standard of proof is “beyond a reasonable doubt,” in civil cases, it is a “preponderance of the evidence.” What this essentially means is that you need to convince a court that your version of events is more likely true than not, or that there is more than a 50% possibility of your claim being true.
When you file a personal injury lawsuit, the onus to show a preponderance of the evidence rests upon you. The defendant can then assert a general denial or put forth an affirmative defense. In case of a general denial, a preponderance of evidence on your part helps establish the opposing party’s liability. However, if the defense affirms the assumption of risk on your part, the burden of proof rests with the defendant.
What the Defense Needs to Prove
If a defense team uses the assumption of risk doctrine to minimize or do away with its liability completely, it has to prove:
- You had knowledge of the risk/s involved.
- You willingly carried out actions that exposed you to the risk/s.
- There was no coercion on you to perform the action.
- The injuries you suffered were because of the known risk/s.
What this means is that the defense needs to prove that you knew of the associated risks in advance and voluntarily accepted the same before acting in a particular manner.
Assumption of Risk Examples
Assumption of risk can find its way in different types of personal injury lawsuits, and here are a few examples.
- Football players assume the risk of tackles and injury when they step onto the field.
- You partake in sports like skydiving or paragliding.
- When you get on a roller coaster, you assume the risk of the usual bumps, jolts, and drops that are part of the ride’s design. However, this does not cover risks from mechanical failure due to negligence.
- If you’re attending a baseball game, you assume the risk of being hit by a ball that flies into the crowd.
- If you go ice skating, you assume the risk of falling on the ice, which is an inherent part of the sport. However, this does not mean assuming the risk of falling due to a poorly maintained rink.
- You enter an area with warning signs like “Enter at Your Own Risk” or “Danger,” assuming the potential risk of injury.
How a Waiver of Liability Works
A waiver of liability is a contract where one party agrees to give up the right to sue another party for injuries. While businesses often use these as protection against personal injury claims and lawsuits, they aren’t always enforceable, and their validity depends on several factors.
- Clear language. A waiver’s language must explicitly state that a signer is giving up the right to sue for injuries caused by a business’s negligence. Courts will not uphold a waiver if the language is confusing, vague, or buried in fine print.
- No protection for gross negligence. A waiver can only protect against ordinary negligence, which is the failure to use reasonable care. It cannot protect a business from claims of gross negligence or intentional misconduct.
- Voluntary and informed consent. People signing waivers must do so voluntarily and with a clear understanding of what they’re signing.
Keep in mind that the law in New York makes waivers of liability void and unenforceable for certain businesses. These include:
- Pools.
- Gymnasiums.
- Places of public amusement or recreation.
Types of Assumption of Risk
With personal injury cases in New York, assumption of risk tends to take place in one of three ways.
- Express assumption of risk. Express assumption of risk implies that a person explicitly agrees, usually in writing through a signed waiver of liability, to accept the risks of a particular activity. However, not all waivers are enforceable in New York.
- Primary assumption of risk. A fairly common defense tactic, implied primate assumption of risk applies if you understand and assume the risk inherent to an activity. This type of assumption of risk is common with organized sports and recreational activities.
- Implied assumption of risk. Implied or secondary assumption of risk may apply if you voluntarily assume the risk associated with a given activity, even in the absence of a signed waiver. In this case, you may still receive compensation because New York follows the contributory negligence
Conclusion
Now that you know how assumption of risk can affect your personal injury case, make sure you know where you stand before you file a claim or lawsuit. Ideally, you should seek advice from a personal injury attorney at the onset because you may then prepare to rebut any possible assumption of risk defense that might otherwise hamper your case.