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What is Assumption of Risk in a Personal Injury Case?

June 23, 2021Personal Injury

If a person sustains an injury caused by the careless, negligent, or intentional actions of another individual or business, they will usually be able to recover compensation for their losses. However, what if the injury victim knowingly exposed themselves to the possibility of an injury?

Here, we want to define “assumption of risk,” which is a legal doctrine that can affect whether or not an injury victim is able to secure compensation after sustaining an injury. This is important to understand, particularly if the at-fault party in an injury claim tries to say that the injury victim knew exactly what they were getting into and thereby should not receive any compensation at all.

Understanding an Assumption of Risk

“Assumption of risk” is a long-standing legal doctrine that can prevent injury victims from receiving compensation through a personal injury lawsuit or an insurance settlement if they sustain an injury while participating in an activity that they knew was likely to cause them harm.

The general idea behind the assumption of risk is that an individual who is injured while participating in an activity that they knew could cause them harm should not be able to receive compensation if an injury actually occurs. Here, we want to discuss “express” assumption of risk and “implied” assumption of risk.

What is Express Assumption of Risk?

Express assumption of risk involves scenarios where the injury victim (the plaintiff) acknowledges that they were aware that there were risks involved with the activity that they participated in. In most situations where there is an express assumption of risk, we will say that individuals acknowledge the risk by signing a written contract. This contract is often referred to as a “waiver of liability” that gets signed before a person is allowed to participate in an activity.

Some of the most common types of activities that a person signed a waiver for include the following:

  • Renting a vehicle
  • Renting ATVs or dirtbikes
  • Renting jet skis or recreational boats
  • Skydiving
  • Trampoline park participants
  • Bungee jumping

After an express assumption of risk is given, this will generally prevent that person from filing a lawsuit against others involved should an injury occur during the normal course of the activities involved.

However, if an injury occurs that revolves around something that the plaintiff should not have reasonably expected to occur, it may be possible to hold others accountable. For example, if a person signs a waiver of liability before participating in activities at a trampoline park, they may be able to file a lawsuit if they are injured due to an exposed metal rod sticking out from the ground below the jumping area. There is no way the plaintiff could have been aware of this type of maintenance issue, and this should not have been there through the normal course of trampoline park activity.

What is Implied Assumption of Risk?

Implied assumption of risk applies to scenarios where there is no formal waiver of liability or contract signed between a plaintiff and the defendant. However, there are certainly situations where a person knows that there will be risks involved before they participate in an activity, yet they choose to participate anyway.

For example, if a person goes to a local park and participates in a pickup soccer game, they are undoubtedly aware that there are risks involved with playing this sport. By participating, a person typically gives their implied assumption of the risks involved. In other words, the average person would understand that participating in a pickup sports game comes with risks.

However, there are times when an implied assumption of risk is given, yet another party can still be held liable in the event an injury occurs. For example, let us suppose that during the pickup soccer game mentioned above, another player is overly aggressive or causes intentional harm to the plaintiff. In this scenario, the injury victim may be able to hold the at-fault party accountable for their actions.

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