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The last thing anybody wants or expects is to be injured while participating in an activity. However, there are some activities that are riskier than others that people choose to voluntarily participate in. This may or may not involve signing a waiver of liability. When participating in risky activities, it may be harder for a person to secure compensation if they sustain an injury after “assuming a risk.” Here, we want to discuss what this means and whether or not injury victims have any recourse in these situations.
“Assumption of risk” is a legal doctrine that could prevent an injury victim from receiving an insurance settlement or winning a personal injury lawsuit if they sustain an injury participating in a certain activity. The idea behind this legal doctrine is that the person who sustains an injury cannot hold a defendant responsible if the injury victim knowingly exposed themselves to the possibility of being harmed. There are two types of assumption of risk that we want to discuss.
“Express assumption of risk” comes into play when an injury victim (the plaintiff) acknowledges before they participate in an activity that they are aware that there are risks involved. In these situations, there will typically be an acknowledgment of some sort in the form of a written contract, though other kinds of legally binding agreements are usually sufficient. The most common form of express assumption of risk is a waiver of liability signed by a person before participating in a risky activity (skydiving, bungee jumping, swimming with sharks, etc.).
When an express assumption of risk has been given, this does not necessarily absolve the defendant of any liability should an injury occur. Often, these cases revolve around incidents where the risks the plaintiff acknowledged were not actually what caused the injury. For example, if someone has signed a waiver of liability acknowledging that their parachute might not open when they go skydiving, but they are struck by a vehicle while on the tarmac waiting to get on the plane, this could open the defendant up to liability. The plaintiff was not likely aware that they could be the victim of a pedestrian-vehicle accident when they decided to go skydiving.
Additionally, express assumption of risk will likely not apply if the actions of the defendant were grossly negligent or intentional and caused harm to the plaintiff.
Finally, plaintiffs and defendants frequently contest whether or not the plaintiff was sufficiently aware of what was in the waiver and whether or not the waiver was hidden inside of a larger contract.
“Implied assumption of risk” applies in situations where even though no formal contract or waiver has been signed between a plaintiff and defendant, the plaintiff knows that there is a risk involved in the activity and exposes themselves to the danger anyway. For example, if you go to your local gym and participate in various “pick-up” sports games, you have likely given an implied assumption of risk. The average and reasonable person understands that there are risks involved with pick-up sports games. However, even in an implied assumption of risk situation, this does not absolve a defendant of liability for overly dangerous or aggressive actions that cause harm.
Injury victims should always consult with a skilled attorney as soon as possible to discuss whether or not they will be able to file a lawsuit against an alleged negligent party. While “assumption of risk” may end up hindering your case against a defendant, you should never assume that you have no case at all. A Scottsdale personal injury lawyer will examine the facts of your case and help you choose the best steps moving forward.