In any potential personal injury situation, the defendant may be able to use an “assumption of risk” defense. Learn what it is and how it works.
About Assumption of Risk
It’s easy to think that, based on what you see on the news and investigative reporting, most personal injury claims are frivolous.
The truth? Some certainly are. That’s just a fraction though.
But most aren’t. Again, the media distorts our reality.
Legally, there is a defense the other party can use called “the assumption of risk.”
This means that if you “knew, or should have known” something was dangerous or wrong, you can’t recover money for your injuries.
So let’s say you’re at your friend’s house in the winter, and you decide it’s a good idea to sled off the roof into a snow bank. You can’t sue them if you break an arm. Or if you go hiking together and you severely sprain your ankle, you can’t sue them for the damages.
When Does Assumption of Risk Fail as a Defense?
Let’s say you and your friend go to an amusement park for the day. There’s a towering roller coaster, and you both agree that it looks like fun.
So you go on. You get tossed and thrown about. Your head hurts a little. You have a minor headache. Under the “assumption of risk” defense, you wouldn’t be able to sue the amusement park.
However, if the roller coaster was negligently maintained, and you experienced a severe concussion, then you likely have a case. Basically, if something unexpected happens, you could hold the amusement park responsible for that.
What If You Sign a Contract Agreeing Not to Sue?
In most cases, you won’t be able to sue the company, or in this case, amusement park. However, there are some situations where that defense breaks down.
And those situations are:
- The contract can’t violate public policy
- It can’t cover intentional acts to cause harm. A disgruntled employee decides not to secure you tightly to a zipline. You fall and experience severe physical injuries.
- You didn’t have the ability to understand the contract. For example, you have a child with Down’s syndrome, or you have a 10-year-old child who signs the contract.
What is Express Versus Implied Assumption of Risk?
With express assumption of risk, you sign a contract, just like we talked about. However, implied gets a little murkier.
For example, your friend visits you during winter. When they call, you tell them, ”Be careful, my driveway’s icy.”
“Ok,” they say.
Assumption of risk is considered “implied” once they verbally acknowledge the risk.
However, if they don’t clearly acknowledge they understood what you said, the “assumption of risk” defense may not hold up in court.
Slip and fall claims often involve arguments of Assumption of Risk.