There’s a legal concept called assumption of risk. If you’re a lawyer, you may know all about it. If you don’t know the legal profession, you may have never encountered it before.
We’ll talk about assumption of risk in this article. If you ever have to pursue a personal injury case, you should know the basic concept. Your entire case can hinge on it.
What Does Assumption of Risk Mean?
The William G. Kolodner Personal Injury Lawyers website mentions that personal injury claims are “based on the assertion that the defendant was negligent.” That’s what your lawyer may try to establish if you take a case to trial. You’re trying to hold someone accountable if their perceived negligence injured you.
If someone tries to fight the negligence claim, they might go to assumption of risk on your part. Assumption of risk means that the person or entity who you say injured you was not responsible because you had to assume risk based on the action you took. In other words, negligence does not apply because you knew or should have known about an obvious danger.
If someone tries to run across a highway and a truck hits and kills them, their family might try to sue the truck driver or the company for which they work. However, if the family tries to claim negligence on the truck driver’s part, their lawyer can counter with an assumption of risk defense. It’s obvious someone should know not to run across a highway because of the danger.
In that example, the family might still win the case, though. The driver might have to assume some responsibility if the evidence proves they looked at their smartphone right when the person tried to cross in front of them. Assumption of risk plays a part, but the jury might side with the family if they know the driver acted inappropriately or negligently.
How to Correctly Use the Assumption of Risk Defense
Assumption of risk works in any state, although the defense attorney needs to prove it in slightly different ways. For instance, in Maryland, you need to verify that the victim knew the danger the risk posed. You must prove they appreciated that risk and then voluntarily confronted it.
That might seem like a high bar. Whether the defense can get a jury to agree with their assertion often depends on what evidence they can produce. If the victim tries to claim they didn’t know about the risk, the defense might look for video evidence or eyewitness accounts that indicate otherwise.
For example, they might use smartphone, dashcam, traffic cam, or store camera footage to prove that a person knew about a certain risk element but engaged in a dangerous activity anyway. They might subpoena witnesses to take the stand to talk about the incident.
If it’s not clear whether the person knew about the danger or not, the jury could side with either the defendant or the plaintiff. Sometimes, these cases are not as obvious as you’d imagine.
The Most Common Cases
Certain cases that go to trial for personal injury reasons often involve the assumption of risk defense. For example, if someone goes skydiving or participates in extreme sports, you’d think that person knew about the risks. If they enter a construction site and hurt themselves, the construction company’s lawyer will probably use this defense.
You might have someone who hurts themselves while working out in a gym. Maybe they try to lift heavy weights and sustain an injury. If they sue the gym, the gym’s lawyer will probably defend their client using the assumption of risk defense.
You might see that defense if someone hurts themselves on an amusement park ride. If the ride malfunctions, the park could claim the person knew the risk element involved. Any time you have someone enter a restricted area with adequate signage, that’s a prime candidate for the assumption of risk defense.
You’ll see this with dog bite cases sometimes. A person might see a “beware of dog” sign and try to enter a yard anyway. That sign might lose them their case, and they’ll have to pay for their own medical bills.
Often, companies try to indemnify themselves using liability waivers. Any time someone signs a liability waiver to see an event or take part in it, that means they understand there’s a risk element. You might also see liability waivers connected to fine print on tickets.
Any time you attend a sporting event, like boxing, wrestling, baseball, football, etc., you might notice a liability waiver on the ticket. It will say something like you assume all risks that come with entering the facility. Balls, bats, or anything else that flies off the field and hits you comes with the territory.
Liability waivers can sometimes indemnify the facility, but they can only go so far. You might have a situation where someone goes to a wrestling show. Maybe they start heckling a wrestler, and that wrestler decides to climb into the stands and punch the person taunting them.
That’s a situation where the liability waiver probably can’t protect the wrestler from a lawsuit. If that happens to you, you likely can’t win if you sue the venue, but you can win a case against the wrestler because they know they shouldn’t have attacked you. They were not in danger as long as you only abused them verbally, so they should never have gotten physical with you.
Liability waivers can complicate assumption of risk cases, especially if they feature ambiguous language. These cases can play out in court over days, weeks, or even months in some instances.
If you feel that you have a case against an individual or entity, and you don’t think they can successfully defend themselves with an assumption of risk argument, suing them might make sense. If you get the right lawyer, you can recoup the money you spent on medical bills and other related expenses.