Assumption of Risk in a Personal Injury Case
Around 400,000 personal injury claims happen across the United States every year with nearly 17,000 being put on trial. Not all of them are successful due to a myriad of factors. One of those factors is the assumption of risk doctrine.
What is the Assumption of Risk?
A personal injury lawsuit is filed by a plaintiff who has been injured or harmed and is demanding compensation from someone who might be legally responsible for the plaintiff’s safety and breach of care, namely the defendant.
Yet, what determines the defendant’s legal responsibility here is the plaintiff’s assumption of risk in the scenario that caused the injury. The assumption of risk doctrine in United States tort law refers to the limitation of a defendant’s liability in personal injury lawsuits.
The limits are in place when the plaintiff participates in an event or activity voluntarily with the full knowledge and assumption of a risk associated with that event or activity. The assumption of risk doctrine can allow the defendant to forgo consequences of torts, where torts refer to actions that cause losses and injuries.
Types of Assumption of Risk Doctrine
The doctrine can refer to implied or express assumptions of risk. An implied assumption of risk can occur in a situation where the plaintiff would be aware of an activity’s risk factor and still participates in it even though the risk was not explicitly mentioned in writing or speech as in the case of an express assumption.
An express assumption of risk would be the signing of a waiver in a sky diving lesson, for instance, and an implied assumption of risk would be the participant logically understanding that there is a risk associated with skydiving.
Primary implied assumptions of risk refer to situations where defendants do not have any duty of care for a plaintiff and secondary implied assumptions of risk refer to situations where defendants actually do have a duty to maintain safety.
Implied or express assumptions of risk can be associated with multiple situations including extreme sports, premises liability, activities with controlled substances, and activities with waivers.
Assumption of Risk Argument as a Defense
Legal defense counsel can use the assumption of risk doctrine in many personal injury cases. The defense in a personal injury case can utilize the assumption of risk and decrease their liability if they can demonstrate the following conditions of the incident in question:
The plaintiffs were fully cognizant of the probability of a risk associated with the activity, demonstrated their awareness, and yet still consented to participation through either speech, written or signed agreements, or actions.
The risk associated with an area, event, or activity was plainly and explicitly clarified through signage in the area, rules or speech at the events, or waivers and oral warnings during activities.
One major caveat in assumption of risk defenses is that the assumption of risk depends on whether the injury itself was foreseeable as a result of the risky activity. If the injury or harm was not a direct result of the activity or event which had an implied or express assumed risk, the defendant can be liable to damages for an injury occurring on their property or during their event.
A skydiving class, for example, will only have an assumed risk of injury from the skydiving itself but if a participant gets injured by machinery during the activity, an unsuspected and unassumed risk, the defendant can be legally responsible for the injury.
A defendant can similarly be liable for personal injury claims if their actions were considered legally negligent and dangerous and caused the injury in question, a liability that would exist even if a plaintiff was aware of an assumed risk.
In a skydiving accident, the business owner will not be liable if the plaintiff gets injured during a routine skydiving session until and unless it was the business owner’s negligence or equipment that caused the injury itself.
Seek Legal Aid
Do you want to seek legal aid for a personal injury case? The legal team at Gaynell Williams Law will be happy to assist you figure your case out and line up a solid defense. Visit our location in New Orleans or visit our website for more information.
When you hire a personal injury lawyer, they make it worth your while. If you are suffering from a personal injury, you should consider hiring a lawyer to handle your claim. It is essential to ensure that your lawyer is trustworthy and reliable and you should only hire from reputable law firms who are experienced with personal injury cases.
At the Law Office of Gaynell Williams, L.L.C., we have the experience you need to fight for the compensation you deserve for not only the costs you’ve incurred, but for the pain and suffering you and your family may have suffered as a result of the negligence of someone else such as a driver of an automobile that caused you harm. We will search for every possible source of financial restitution, be it through insurance settlements, personal injury claims, arbitration, mediation, or litigation. Our goal is to work with you so that you receive compensation for the pain and suffering and financial costs you have been burdened with after a serious accident so that you can focus on what is most important – healing and getting on with the rest of your life.
Contact Us Today
Gaynell Williams LLC Attorney at Law offers a free initial consultation to discuss your case. The first consultation can be in person or it can be virtual, on the Internet. Call Gaynell Williams today at (504) 302-2462 for a free consultation as soon as possible. We will work around your schedule. New Orleans lawyers Gaynell Williams LLC Attorney at Law have offices in Gretna and Downtown New Orleans by appointment only.
This information has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorney in connection with any specific situation under Louisiana law and the applicable state or local laws that may impose additional obligations on you.
© 2021 Gaynell Williams