Those of us who are thrill-seekers are likely aware of some of the hazards involved in our favorite activities, whether that be skydiving, snowboarding, or anything else that gets your heart racing. Being aware of the dangers you face while enjoying yourself is important to staying safe and having fun, but that knowledge could be used against you in a personal injury case. Negligent actors may argue that your knowledge of dangers involved in your personal injury makes you partially, or fully, liable for your own injury.
What is Assumption of Risk?
You may have unknowingly taken on the assumption of risk before. If you’ve signed a waiver before participating in a sport, recreational activity, or any activity that has a risk of injury, you may have agreed to take on the assumption of risk involved in that activity. This is known as “express” assumption of risk, compared to “implied” assumption of risk, which presumes that you knew the risks of the activity, even if you didn’t sign a waiver claiming so. An implied assumption is significantly more difficult for the defense to uphold, as there is no explicit acknowledgment that you were aware of every risk involved.
The assumption of risk asserts that you are aware of the dangers of the activity you participated in and chose to engage in that activity regardless, making you at least somewhat liable for the incident. This is frequently used to pass liability onto the injured person, and prevent them from collecting compensation. An important factor in the assumption of risk is that the injured party must have been aware of the risk which caused their injury. For example, you may be familiar with the signs at baseball stadiums that warn of foul balls potentially hitting fans in the stands. Courts have upheld that fans who are hit by baseballs necessarily assumed that risk. However, if the stands were to collapse under the patrons, that is likely not a risk that they could have been aware of, as most people would assume the stands to be stable.
Assumption of Risk Does Not Excuse Negligence
Similar to an unforeseen risk, negligence is not excused by the assumption of risk. The acceptance of risk does not mean that a participant accepts the liability of a negligent actor. For instance, a doctor breaching their duty of care by conducting a different surgery than what you signed on for does not fall under the assumption of risk, even if you signed a waiver beforehand accepting the usual risks that come with surgery. You likely assumed that the doctor would conduct the surgery you agreed to, as any reasonable person would, and the doctor failed their duty of care by not doing their job as they should have.
Don’t let the assumption of risk stop you from fighting your personal injury case. An experienced personal injury attorney knows when the assumption of risk applies, and when it’s used as an excuse for negligence. Contact Ryan R. Cox & Associates, LLC today for an experienced legal counsel that can fight against the assumption of risk.