What Is Assumption of Risk and How Does It Change Your Case?

Assumption of risk is a defense that a defendant can claim in negligence actions and other personal injury torts. Assumption of risk means that a defendant cannot be sued for damages or injuries the plaintiff suffered if that plaintiff knowingly and voluntarily assumed the risk of damages or injury.

A defendant can raise this legal doctrine as a defense against a plaintiff’s claim for damages. If a defendant can successfully prove the plaintiff knew and accepted the risk, then the plaintiff’s claim against the defendant will not be successful. Read on to learn more about the assumption of risk and if it's relevant to your case.

Understanding the Assumption of Risk Doctrine 

Assumption of risk is a legal doctrine used by defendants as a defense in negligence or other personal injury actions. If successful, it will bar the plaintiff’s recovery against a defendant. 

The reasoning behind the legal defense is that if a plaintiff willingly and knowingly exposed themselves to the risk or potential of incurring an injury, they cannot recover damages for that injury. If the plaintiff was alright about risking the possibility of injury, then they cannot sue if the injury occurs.

Assumption of risk is often a defense used in negligence cases. To prove negligence, a plaintiff must prove four elements:

1. The defendant owed the plaintiff a duty of care.
2. The defendant acted or failed to act in breach of that duty.
3. The breach was the cause of the plaintiff’s injury.
4. The plaintiff suffered an injury.

Assumption of risk concerns the first element of negligence: duty. The notion is that the defendant does not owe a duty to a plaintiff who knew of the risk of injury and wilfully decided to act or not in such a way that they risked that injury. If the defendant can successfully negate the duty element of a negligence claim with the defense of the assumption of risk, then the plaintiff cannot prove their negligence case.

Assumption of risk cases turns on whether the following two elements can be proven:

• Knowledge
• Willingness

The defendant must prove that the plaintiff had knowledge of the risk of injury if they acted or did not act in a certain way. The defendant must also prove that the plaintiff voluntarily or willingly accepted the risk.

If these elements are met, the defendant can successfully prove their assumption of risk defense.

Types of Assumption of Risk

Assumption of risk can be demonstrated in different ways: in words or actions. There are two types of assumption of risk cases: expressed and implied.

Expressed

An express assumption of risk usually has some physical evidence. It can involve a signed contract between two parties. That contract would include a clause clearly stating and explaining the risk of harm to the plaintiff. An example of this would be when the plaintiff signs a waiver.

Alternatively, the express assumption of risk does not necessarily have to be in writing. It can also be made verbally, as long as the plaintiff has full knowledge of the risk of injury and voluntarily decides to accept the risk.

Implied

The second type of assumption of risk is the implied assumption of risk. With this, a plaintiff accepts the risk of injury if they do or do not do something. However, this acceptance is not expressed in writing or expressed verbally. It is more implicit.

The notion is that even though a person does not expressly say in writing or in words, it is implied that the person does have that knowledge of the risk and willingly accepts it.

Common Cases Where Assumption of Risk Comes Into Play 

Here are some common situations where the assumption of risk defense can arise.  

Participating in Sports 

When someone decides to engage in sports, they accept the risk of injury and, therefore, cannot successfully sue a defendant. Injuries from playing sports will probably be deemed to have been knowingly and willingly accepted. 

For example, football participants cannot sue their team management for bruises or a sprain they obtained while playing the game, as it is naturally an occurring event in the game of football to be shoved or tackled. On the other hand, if the injury does not arise from actions that pertain and are common to the sport, then an assumption of risk defense might fail.

Premises Cases

Construction sites often post warning signs labeled “Danger: Do Not Enter” or similar. This gives warning and notice to all parties that there is a risk of injury upon entering. Thus, a plaintiff would not be able to sue the construction company for any injuries incurred after entering the construction site. Assumption of risk occurs when they entered because they were fully informed of the danger and therefore had knowledge of the danger, but willing decided to enter the construction site.

Dangerous Activities

If a party agrees to participate in certain dangerous activities, they will be deemed to have accepted the inherent risk of injury. Examples of dangerous activities include skydiving or going on certain rides in an amusement park.

Assumption of Risk vs. Comparative Negligence 

Assumption of risk and comparative negligence are two different kinds of affirmative defenses. Similarly, they help a defendant limit their liability in certain circumstances. However, they must be proven differently.

Assumption of risk is a legal doctrine and defense where the defendant can avoid civil liability if they can successfully prove that the plaintiff knowingly and voluntarily accepted the risk.

Comparative fault, on the other hand, is a different kind of legal defense. The defendant has to prove that the plaintiff was somehow at fault (either partially or fully) for the injury the plaintiff suffered.

For example, suppose the defendant and plaintiff were in a car accident where the plaintiff was injured and wanted $100,000 in compensation for their medical bills. If the defendant can prove the plaintiff was 45% at fault for the accident, the defendant is only responsible for 55% of the compensation ($55,000).

How Assumption of Risk Defense Can Affect the Outcome of a Case 

Assumption of risk defenses can change the outcome of a case. If successful, it might defeat a negligence or other personal injury lawsuit. 

However, there may be exceptions, so obtaining a personal injury attorney is advisable to review your case and decide how much it is worth.

Work With an Attorney Who's Knowledgeable in Assumption of Risk Cases 

If you have been involved in an accident or incident and don’t know where to turn, contact the Spence Law Firm. One of our experienced personal injury lawyers will review your case and help you decide how to proceed. Contact us now for a free initial consultation.