Assumption of Risk in Personal Injury Cases
Sometimes a plaintiff may behave in a careless and unreasonably dangerous manner, without taking note of the risks involved with their conduct. We call such behavior contributory or comparative negligence. Other times, however, a plaintiff enters a course of conduct knowing the risks of that conduct. And in some of these situations, though not all, the law treats a plaintiff’s knowledge of the risks as grounds for allocating those risks to the plaintiff—or at least to distributing those risks among the negligent parties according to their relative fault. We call these instances ones in which the plaintiff assumes the risk. A plaintiff may assume risks in an express manner or in an implied manner. In this blog post, we will discuss assumption of risk and how it can affect a personal injury claim.
What is Assumption of Risk?
Assumption of the risk occurs when a plaintiff knowingly takes a chance that they will be injured. When a plaintiff knowingly takes a chance that they may be hurt while conducting an activity, the law requires them to take responsibility for the consequences of their actions. Assumption of the risk is based upon the belief that individuals have the right to make their own risky decisions. However, if an individual is injured as a result of their choice, they must bear the responsibility of that choice. Assumption of risk is different than contributory or comparative negligence. The major difference between assumption of the risk and contributory negligence is the degree in which the plaintiff realizes there is a danger. For assumption of the risk, the plaintiff must realize there is a danger and voluntarily take on the danger. The realization of the danger is a subjective standard rather than an objective one. With assumption of the risk, the importance is placed upon what the plaintiff that was injured believed. Express assumption of the risk occurs when a plaintiff either signs a waiver of the risk or verbally states that they accept the risk. For instance, an example of an express assumption of the risk would be when a plaintiff signs a release or some type of liability waiver. A plaintiff can agree ahead of time to waive a defendant’s liability for potentially negligent conduct. This is frequently the case during an adventurous tour such as white water rafting or a zip line tour. If the plaintiff does so expressly, the waiver is bargained for, and the waiver is not against the public policy, then a court will probably uphold the waiver as valid. On the other hand, waivers that are against public policy will not be enforced by a court. For instance, a waiver that is against public policy would be a waiver that requires the plaintiff to waive liability for the defendant for intentional torts against the plaintiff by one of the defendant’s employees. In sharp contrast, an implied assumption of the risk occurs when by their conduct, plaintive shows that they have excepted a risk. If a person goes to a park to rock climb, by the conduct of climbing the rock, they have assumed the risk that they may fall and injure themselves. If a person goes hang gliding off a cliff, you would assume that they are risking that the glider may crash and injure them. These risks are part and parcel of that activity.
Let Our Personal Injury Lawyers Help! Schedule a Free Consultation Today! Personal injury claims arise out of many different situations, including car accidents, truck accidents, motorcycle accidents, bicycle accidents, pedestrian accidents, and slip and fall accidents. Were you hurt or injured in an accident in South Florida? When someone’s careless acts injure a victim, these lawsuits are important ways to help victims pay for the costs of their serious injuries. It is important to know that you may be able to recover damages for your injury including compensation to pay for economic losses, medical treatment and expenses, surgeries, loss of income, and more. In order to maintain to maintain your civil case for damages to elements are going to be essential and must occur. There must be a technical violation or out of a right or some type of injury and there must be some damage. That means that in order to maintain an action for damages for personal injuries you must have some type of damage that results. Our attorneys are ready to provide proven legal representation and stand ready to protect your rights. We are available 24/7 to give you a free, no risk case consultation!
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