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Date Modified: September 9, 2023
In a nutshell, the Assumption of Risk is a defense in tort law. It is the principle that Plaintiff assumed the risk based on showing that he knew the danger, understood the risk involved, and chose to encounter it voluntarily.
Accordingly, if the court finds this, it may reduce the Plaintiff’s damages or dismiss the claim. Let’s learn more. In most personal injury lawsuits, plaintiffs seek to recover monetary compensation for damages. However, in some cases, they may not be able to recover, and the assumption of risk, or risk assumption defense, is one of those.
Video Transcript - What Is ‘Voluntary Assumption of the Risk’ in a Civil Claim?
"0:00 What is voluntary assumption of the risk? 0:02 In a civil claim, voluntary assumption of 0:06 the risk is a situation where a 0:08 plaintiff voluntarily accepts a known 0:11 and appreciated risk and goes forward 0:13 with the dangerous activity. For example, 0:16 if somebody gets on a horse and they go 0:19 riding the horse, they assume the risk 0:21 that they could fall off that horse. If 0:24 someone engages in a recreational 0:26 activity like boxing, for example, they’re 0:30 deemed to have assumed the risk inherent 0:32 in that particular activity, and 0:34 therefore they cannot sue someone who 0:36 may have contributed to creating that 0:39 risk of harm. [Music]"
What Is Voluntary Assumption of the Risk in a Civil Claim?
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 plaintiff assumed the risk involved in the activity.
The plaintiff voluntarily accepted the inherent risks involved either in writing, through their conduct, or in an agreement.
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. The plaintiff cannot obtain damages created by risks inherent in a particular situation or the dangers arising from the defendant’s negligence.
Meaning of Negligence in a Civil Claim
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.
Can a Person Sue Another for Injuries Even after Signing a Waiver Form?
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:
Any contract in violation of public policy may not have legal grounds and some examples of areas that public policy covers include education and medical health care.
The contract stands void if it covers intentional acts. For instance, if someone carries out an act that intentionally harms another individual, they may not be able to use the assumption of risk defense.
The contract has no legal grounds if the plaintiff signing the contract does not have the full capacity to understand the contract. This means that a plaintiff suffering from mental disability or illness may not comprehend the contract’s language. Therefore, even if they sign a contract that waives their right to sue the other party, they can still bring a civil action. An agreement between a mentally ill party and a hospital does not have legal grounds in court. A minor is another individual who cannot waive their right to sue by signing a contract since they don’t have the mental capacity to understand.
What Is Express Assumption of Risk?
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.
What Is Implied Assumption of Risk?
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 cannot pursue a personal injury claim against Jerry.
Limitations to Implied Assumption of Risk
Since the scope of implied assumption of risk is broad, there are certain acts that the defendant cannot use the implied assumption of risk defense, including:
Criminal or illegal acts against the plaintiff: A person cannot kill another person just because they accept the risks since it is a criminal and an illegal act.
Voluntary behavior that may be involuntary: For example, a person lives far away, and the weather is terrible but decides to sit in a car driven by a drunk driver because they have no other option.
Unforeseeable behavior: When a person sits in the front row of a baseball game, they accept the risk that the ball may hit them, but when sitting in a movie theatre watching a movie, they cannot predict or assume the risk of a deadly shooting occurring.
Cases Involving Implied or Express Assumption of Risk
The assumption of risk defense is often used in cases that involve:
Activities involving a certain risk of injury or danger, such as circus acts
Premises liability where the property owner places a sign that warns trespassers to enter at their own risk
Sports activities
Extreme sports such as paragliding or skydiving
Waiver disputes.
Assumption of Risk: Knight v. Jewett
In January 1987, Knight, several others, and Jewett met at a friend’s house to watch a Super Bowl football game. Knight and Jewett decided to play a game of touch football among themselves during halftime. 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, 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.
Can a Lawyer Help You with an Assumption of Risk Defense?
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.
Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients.
We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.
