The most well-known types of personal injury cases involve a person suffering an accident due to another’s fault. A common example is a car accident due to drunk driving or things like a slip-and-fall accident at the workplace. The victims in such cases tend to have a straightforward case; contact a personal injury lawyer at the Pacific Attorney Group and you have a solid case. However, there is the concept of the assumption of risk. This is when an individual is expected to know the possible consequences of an activity. When individuals choose to knowingly engage in such activities, this can nullify their claims in case they suffer an accident.
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Assumption of Risk Defense
This is when the defendant raises the issue of the victim knowing about the risks associated with engaging in a particular activity but choosing to do it anyway. It is a valid defense in that it can exonerate the defendant from all liability. Of course, this has to be proven in a court of law.
There are two types of assumptions of risk defense. These include;
1)Express Assumption of Risk
This is when the victim is fully aware of the risks associated with engaging in a particular activity. Typically, the defendant must have explained it to the plaintiff in no uncertain terms. Also, there could be documentation to support this.
A good example is someone engaging in extreme sporting activities like racecar driving or bungee jumping. Involvement in such activities carries a disproportionate risk of incurring physical injuries or death. Still, many people opt to participate in them. If the defendant explained the risks clearly to the victim prior to participation, the defendant cannot be held liable for any accidents that befall the participants.
A waiver tends to be useful for defendants in such situations. This is a document that clearly states the risks associated with an activity and that a person is willfully and knowingly engaging in it.
A waiver is usually enough to dismiss a case of personal injury liability against a defendant. As long as there is evidence that clearly warns the plaintiff of risks associated with a particular activity, the defendant’s lawyer can use it as an express assumption of risk.
2) Implied Assumption of Risk
This is tacit consent, meaning the plaintiff’s actions (or lack thereof) can be interpreted to mean they agreed to participate in a certain activity. It can also be a valid defense in court.
This is very common because it is assumed in many everyday situations. A good example is when someone walks into a construction site without the required protective gear like helmets and boots. If the person gets struck by a falling object, the property owner will likely not be held responsible for the victim’s injuries. Similarly, if someone walks into a convenience store with a wet floor and chooses to continue shopping despite this, they’re assumed to shoulder the risks associated with doing this. Should the person slip and fall, the store owner won’t be held liable for such injuries. Of course, there has to be a clear warning sign at both sites for an implied assumption of risk defense to work in the defendant’s favor.
In both types of assumption of risk, there may be situations that favor the plaintiff. For example, if the defendant acted maliciously and did things that actively contributed to the plaintiff’s injury or death, they can still be held liable despite any assumptions of risk, implied or otherwise. However, the plaintiff’s lawyer still has to prove this in court beyond a reasonable doubt.
How Negligence Factors In
Sometimes, the plaintiff’s actions can be interpreted as contributing to their misfortune or accident. This is known as negligence. If the plaintiff’s actions (or lack thereof) can be proven to be a factor in their accident, this could nullify their personal injury claim in court.
If the plaintiff is found to have been negligible to a certain degree, the court may decide to award them damages according to their degree of culpability. This situation is known as comparative negligence. Sometimes, the court may choose not to award any damages even if the plaintiff only contributed little to the accident. This is known as contributory negligence.
In both types of negligence, the defendant’s attorney can argue an assumption of risk. By choosing to do something, the plaintiff is assumed to know the possible outcomes associated with it.
Ultimately, proving a personal injury case becomes harder every time there is an element of the assumption of risk. An experienced personal injury lawyer offers the best opportunity at proving the plaintiff’s case.
