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You make choices every day about how you’ll handle a dangerous situation
Have you been on a roller coaster? Played a sport? Climbed a ladder?
These are all “normal” things to do and even the most risk-averse among us have likely engaged in these activities at least once or twice in their lives.
But if you’re injured participating in these or other activities and you file a personal injury lawsuit, the defendant might invoke a common law doctrine known as assumption of risk.
Assumption of risk means that the plaintiff (injured person) cannot recover damages from a negligent defendant (the party that caused the injury) because the plaintiff voluntarily accepted risk from the activity.
The negligence standard
When a personal injury lawsuit is filed, you have two (or more) parties: The plaintiff and the defendant(s).
The plaintiff is the person who was injured. They can file a lawsuit against a person or entity whose negligence caused the injury.
The majority of accidents happen because someone is careless. If this carelessness falls below a legally recognized standard, the person’s conduct is considered “negligent,” and the person is liable for any damages caused by their negligent action.
To prove negligence, the plaintiff must establish 3 elements:
- Duty. The plaintiff must prove that the defendant owed them a duty of care. A duty of care arises when the defendant is expected to exercise a reasonable standard of care to avoid harming the plaintiff.
- Breach. A breach occurs when the defendant fails to meet the standard of care required.
- Causation. The plaintiff must prove that their injury was actually caused by the defendant’s breach of the standard of care.
Burden of proof in a personal injury claim
In most civil cases (i.e. not criminal), the plaintiff has the burden to prove their claim by a preponderance of the evidence. This is also known as the “more likely than not” standard. The plaintiff must convince the judge or jury that there is more than a 50% chance that the evidence they’ve presented is true. In other words, they must show that the existence of the fact is more probable than its nonexistence.
When a plaintiff presents their case, the defendant may refute their claims.
Sometimes, the defendant’s lawyer will present an affirmative defense. This is when they argue that even though the defendant’s action was negligent, there is some fact or set of facts that prove that the plaintiff’s action defeats or mitigates their legal consequences.
An assumption of risk defense shifts the burden of proof from the plaintiff to the defendant, who needs to prove that the plaintiff:
- Had actual knowledge of the risk; and
- Voluntarily accepted the risk.
Contributory and comparative negligence laws
Each state follows a contributory or comparative negligence law.
The difference between contributory and comparative negligence is that under the contributory negligence doctrine, a plaintiff who is partially at fault for their own injury may not collect any damages. Under comparative negligence, a plaintiff could collect some damages that are reduced according to their percentage of fault.
Comparative Negligence, Contributory Negligence and Determining Fault
Why is this important?
As a defense, this can make or break a plaintiff’s case.
Assumption of risk means a person chose to participate in activity that they knew could cause harm. It limits their ability to claim damages if they get hurt.
Express or implied assumption of risk
A person may assume the risk of an activity in two ways:
- Express assumption of risk: This is usually in the form of signing a waiver of liability. As long as the waiver is not contrary to public policy, it can form a contract that would prevent the plaintiff from recovering damages beyond the terms of the waiver. Some states have varying laws for this.
- Implied assumption of risk: A person might not sign a waiver that explicitly absolves a defendant of liability, but simply choosing to participate in an inherently risky activity is an implied assumption of risk.
What is an abnormally dangerous activity?
An abnormally dangerous must meet two criteria:
- It poses a significant risk of harm to a person or property that is not reduced even when exercising care; and
- It is not common usage.
For example, driving a car carries a certain amount of risk. However, while you do assume some risk every time you get into a car, this is not considered abnormally dangerous.
However, there are some activities that are commonly regarded as abnormally dangerous even if you can predict the likelihood of injury.
For example: Blasting explosives, disposing of hazardous chemical waste, crop dusting, fumigating, storing explosives, burning fields, or using poisons are considered abnormally dangerous.
Strict liability for an abnormally dangerous condition or ultrahazardous activity
Under a strict liability doctrine, the defendant is responsible for the plaintiff’s injuries without the plaintiff having to prove that the defendant was negligent.
Strict liability applies to three common types of civil cases:
- those involving animals
- those involving abnormally dangerous activities
- those involving defective products
Assumption of risk is a common defense to a strict liability claim. It says that the plaintiff knew and appreciated the risk created by a particular condition and voluntarily assumed the risk, regardless of potential consequences.
Here’s an example: It’s the Fourth of July and Alice invites friends over for a backyard barbecue. She tells them ahead of time that she has explosive fireworks and she thinks it would be fun to set them off during the party. As she is setting up the fireworks, her friend Suzette eagerly sets up her chair nearby for a good view. One of the fireworks shot out a stray spark and during the display and Suzette, sitting in her chair near the explosives, is burned. She files a personal injury lawsuit against Alice. Although explosives are considered abnormally dangerous, Alice could provide the defense that Suzette knew that explosives are dangerous and opted to sit nearby, therefore assuming the risk of injury.
What should you do if you were injured but you might have assumed the risk?
You should call a qualified, experienced personal injury lawyer. You might have assumed the risk, but your lawyer also might have strategies to help you receive some (maybe not all) compensation.
Much of this depends on your state laws; some states allow for plaintiffs to receive some damages even if they contributed to the injury and others don’t. As always, the law is nuanced and the best approach is to seek the advice of an attorney who will review the facts of your claim, minimize your liability, and guide you through the legal process.
See our guide Choosing a personal injury attorney.