Assumption of the risk is a type of defense that is available in the majority of personal injury and negligence lawsuits. This particular defense arises when the plaintiff knowingly and voluntarily assumes the risk of harm which is connected with the negligence of the defendant.

If the plaintiff has assumed this type of risk, they will not be able to recover damages for any of the harm which results from the defendant’s conduct, even if that defendant was negligent or reckless. In order for a defendant to prove the defense of assumption of the risk, a defendant is required to show that:

  • The plaintiff had actual knowledge of the risk which was involved in the activity or conduct; and
  • The plaintiff voluntarily accepted that risk, either impliedly by their words and conduct or expressly through an agreement. In other words, the plaintiff cannot be forced to perform the activity in question.

In addition, it is typically necessary to show that the danger was obvious or that the nature of the conduct itself was inherently dangerous. Assumption of the risk is a defense that is commonly used in negligence cases, in addition to contributory negligence and comparative negligence.

What is Negligence?

Negligence is a legal theory which provides injured individuals with the opportunity to recover for injuries sustained due to the carelessness of others. An individual is negligent if they were careless based on the circumstances of the situation.

In these types of cases, typically a defendant acts carelessly, the plaintiff is injured, and a lawsuit is filed so the plaintiff can receive compensation for their injuries.

Can I Still Sue a Defendant for My Injuries if I Signed a Contract Stating I Would not Sue Them?

In general, a plaintiff cannot sue a defendant for their injuries if they signed a contract stating that they would not sue the defendant. The purpose of the assumption of the risk defense is to prevent liability on the part of the defendant or to outright deter an injured party from bringing a lawsuit.

Express assumption of the risk, however, is a defense which is based on contract law and, because of that, has a few critical issues, including:

  • The contract cannot be in violation of public policy. Public policy may be defined by public accessibility or public necessity. Typically, mandatory education and emergency medical care are usually examples of areas of public policy;
  • The contract cannot cover intentional acts. For example, if a race car track owner leaves a wheel in the road intentionally in order to cause harm to the plaintiff, the assumption defense will not work; and
  • Plaintiff did not have the required capacity to fully understand the contract. A plaintiff who is mentally ill or barely conscious cannot sign a contract which waives their right to sue a doctor or hospital. Likewise, a minor likely does not have the ability to waive the right to sue if they go skydiving but it will depend on the exact age of the minor.

What is Express Assumption of Risk?

One of the elements required to prove assumption of the risk is that a plaintiff is required to accept the risk involved. An acceptance of the risk may either be expressed, such as with an agreement between the parties or it may be implied, which is determined by the plaintiff’s words or conduct.

Express assumption of the risk typically takes the form of a written agreement between a plaintiff and a defendant. For example, when an individual engages in an ultrahazardous activity, such as skydiving.

The individual may be required to sign a waiver which states that they are assuming all of the risks associated with the skydiving activity and that they will not pursue litigation if they are injured.

What is Implied Assumption of Risk?

Implied assumption of the risk, in comparison, does not involve a written agreement. Instead, it may come in the form of an oral statement or conduct on the part of the plaintiff.

For example, suppose that a property owner tells the plaintiff that, “[p]art of my yard is filled with sinkholes.” Suppose that the plaintiff then responds, “[s]ure,” nods their head, and then proceeds to walk into the area which was indicated and they fall into a sinkhole.

In this example, the plaintiff’s knowledge of the risk may be implied from the head nod and verbal response. Implied assumption of the risk typically has to do with the response of the plaintiff after they received information about the risk.

Therefore, when proving assumption of the risk, it is necessary to consider all of the facts surrounding the plaintiff’s injury to determine whether or not the plaintiff had expressly or impliedly assumed the risk.

What Statements or Conduct Can the Plaintiff not Waive Through Implied Assumption of Risk?

Although an implied assumption of the risk may be quite broad so long as that assumption is voluntary and is understood by all of the parties involved, there are certain forms of conduct for which the plaintiff cannot waive.

  • Such conduct includes:
  • Criminal behavior against the plaintiff;
  • Voluntary behavior which may actually be involuntary based on the circumstances. For example, accepting a ride from a drunk driver may be deemed involuntary if the weather is bad at the plaintiff is far from their home; and
  • Behavior which is completely unforeseeable. An individual may assume the risk of being hit by a baseball when they sit in the front row of a baseball stadium during a game. In contrast, a plaintiff cannot force and assume the risk of a deadly shooting while watching a movie in a theater.

What Types of Cases Commonly Involve Assumption of Risk?

There are certain types of cases which commonly involve assumption of the risk. One example is when a plaintiff exters an area which is littered with toxic materials.

Suppose that the plaintiff in this example reads the signs which were posted around the area marked, which stated, “[d]anger- hazardous materials- enter at your own risk”. If the plaintiff chose to still enter this area after reading the signs, meaning they had knowledge of the risk, they still may not be able to recover damages from the property owner because they assumed the risk of injury.

The assumption of the risk defense is commonly raised as a defense in cases which involve:

  • Activities where the danger is obvious or nature of the activity is inherently dangerous, for example, it cannot be performed without some risk of injury;
  • Premises liability. Typically, a sign stating enter at your own risk will suffice;
  • Sports activities, especially contact sports; and
  • Ultrahazardous activities and extreme sports activities, such as skydiving and paragliding; and
  • Waivers and release clause disputes. These documents typically include language which addresses the assumption of risk.

Do I Need a Lawyer for Help with an Assumption of Risk Defense?

An assumption of the risk defense may prevent a plaintiff from recovering damages for injuries they suffered. Therefore, it is important to consult with an experienced tort lawyer if you have a dispute which involves assumption of the risk.

Your attorney will be able to address any questions you may have regarding the defense as well as advise you of the laws in your state. In addition, your attorney will represent you in court if a private lawsuit is filed.