In personal injury cases, one of the defenses available to the defendant is the assumption of risk. The defendant can use this defense when the plaintiff voluntarily accepts the risk and knows the harm associated with the defendant’s act.
When a plaintiff voluntarily assumes the risk from the defendant’s act and knows the harm that can occur, they cannot recover damages from the defendant for the act, even if the defendant was negligent in their actions.
If an injured plaintiff brings a lawsuit after such a situation, the defendant must prove the following elements to have a valid assumption of risk defense:
The idea of the assumption of risk doctrine is that the plaintiff had actual knowledge of the risks, and because of that, the defendant does not have a duty of reasonable care toward the plaintiff.
If there is no duty, there is no breach, meaning the negligence element is not met, and the plaintiff cannot obtain damages created by risks inherent in a particular situation or the dangers arising from the defendant’s negligence.
Negligence is a concept in tort law that allows injured victims to recover compensation for their injuries or damages arising from another’s reckless or carelessness. If an individual is careless, under the concept, they are negligent in their actions.
Typically, personal injury cases arising from negligence occur when someone’s actions are negligent, which causes injuries to the plaintiff, who then files a negligence claim against the negligent person to recover compensation for their loss.
Typically, when a person signs a contract with another person waiving their right to sue them, they lose their right to bring a civil action against the other party. The aim of the contract or the assumption of risk is to protect the defendant from liability and prevent the injured party from pursuing a lawsuit against them.
Under contractual law, the express assumption of risk doctrine is one of the most significant defenses for a defendant.
But it does have some issues that may prevent the defendant from using the defense, including the following:
Express assumption of risk occurs when a written agreement is signed between the plaintiff and the defendant. The agreement states that the parties assume the risk of an act and conduct and can help the defendant satisfy one of the elements of the assumption of risk, which is that the plaintiff accepted the risk.
When a person conducts an inherently dangerous activity, such as skydiving, they must sign a waiver form acknowledging the risks of the skydiving and protecting the business offering such activities from liability if anything happens to the person.
Unlike express assumption of risk that includes a written agreement, risk implied assumption or assumption of risk occurs from a verbal statement or the plaintiff’s conduct. Implied assumption of risk is very common in sports where the players know that they can suffer injuries while playing and therefore accept the sports’ risks.
Some states divide the implied assumption of risk into two categories, primary assumption and secondary assumption. Under the primary assumption, the defendant does not have a duty of care toward the plaintiff; an example is playing contact sports.
On the other hand, under the secondary assumption, the defendant has a duty of care toward the plaintiff but breaches it. For example, Jerry tells John at a party that he has had too many drinks and should not drive but then proceeds to offer John a drive back home.
If John steps into the vehicle with Jerry and an accident occurs, he will not be able to pursue a personal injury claim against Jerry.
Since the scope of implied assumption of risk is broad, there are certain acts that the defendant cannot use implied assumption of risk defense, including:
The assumption of risk defense is often used in cases that involve:
In January 1987, Knight, several others, and Jewett met at a friend’s house to watch a Super Bowl football game.
During halftime, Knight and Jewett decided to play a game of touch football among themselves. They did not decide on rules other than to stop the player’s advancement and touch them above the waist with two hands.
Knight previously played touchdown football before, and according to her understanding, there was no forceful pushing or shoving in the game. 10 minutes into the game, Jewett ran into Knight and received a warning from Knight that he shouldn’t play so rough otherwise, she would not play.
During the next play, Jewett knocks down Knight and steps on her finger, causing her injuries. Knight had three unsuccessful surgeries, and the surgeons had to amputate her finger in the fourth surgery.
Knight sued Jewett for negligence and assault, and the defendant applied the assumption of risk defense. To prove negligence in such a case, Knight had to establish that Jewett owed her a duty of reasonable care and breached it, resulting in the plaintiff’s injury.
The assumption of risk doctrine reduces the defendant’s duty of care due to the dangers of the activity, and when there is no duty, there can be no breach of duty of care.
The court held that Knight knew about the game’s risks and that Jewett’s conduct was not outside the reasonable expectations of the game. According to the court, Knight could also not state the cause of action for assault as Jewett had no intent of harming Knight.
Whether implied or express assumption of risk, it can help the defendant avoid damages for the plaintiff’s injuries.
If you are facing a lawsuit and believe that it’s not fair since the risks were in the plaintiff’s knowledge, contact us at (833) LETS-SUE for a free consultation with our experienced tort lawyer to discuss your case.