What Is “Assumption of Risk”?

Personal injury cases arise from an individual claiming that another person or entity was responsible for harming him or her through some negligent action. But what if the victim was aware of the risks involved in the activities that caused an injury?

The term “ assumption of risk ” is used to describe when a victim or plaintiff has consented in some way to the actions that caused his or her injury. Usually, this consent is in the form of a written waiver or consent form, in which the other party describes the risks involved in the situation, and the plaintiff signs that he or she is aware of these risks and wishes to continue anyway.

Cases involving assumed risk are tricky and require thorough investigation and an understanding of the circumstances surrounding the incident in question. If the plaintiff has signed off on a waiver or was reasonably informed of the risks involved in the injuring activity but continued anyway, the defendant will then need to prove that the plaintiff acted improperly or did not exercise care in his or her actions.

There are two types of assumed risk commonly referenced in these cases: express and implied.

Express assumption of risk means the plaintiff demonstrably recognized the risks of the activity in question and consented to continue in some way. This is usually proven through a written agreement, such as a waiver. However, the plaintiff must be made completely aware of the waiver that may have been contained in any signed paperwork or as part of a larger agreement, and the full scope of the risks involved must be clearly ascertained.

Implied assumption of risk applies to a situation in which there is an obvious risk that the plaintiff can plainly recognize, but he or she continued in his or her actions regardless. An example of this is jaywalking – a pedestrian, who knows that jaywalking is dangerous, decides to do it anyway and is struck by a car. In a case such as this, the victim may be considered contributory to his or her own injuries, reducing the amount of damages that can be claimed.

Most state laws include contributory or comparative negligence clauses , meaning that the victims of personal injury cases can be held accountable for part of an incident. The total compensation they are eligible to receive will be reduced in proportion to the amount of fault they are proven to have had in the incident.

Any personal injury claim lodged against another party will revolve around the victim proving he or she was owed a duty of care that was breached, causing the plaintiff’s injuries. Though this may seem straightforward, any assumption of risk that is called into question will greatly complicate the case.

Reliable legal counsel can thoroughly navigate any personal injury case and recognize if and how an assumed risk applies to the situation. In cases where plaintiffs gave express indications that they were aware of the risks involved in the activity in question, they may believe they have no defense. This is not always the case, and victims need to understand their rights.

At the law offices of Gordon, Elias & Seely, we understand that assumption of risk can complicate a personal injury case. We are committed to aggressively pursuing every avenue of compensation, and we will ensure that all clients receive competent, thorough legal representation. Even in cases involving assumed risk, victims should not be forced to pay for another person’s grossly negligent actions. Reach out to our experts to start reviewing your case today.

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