Introduction
More than 39.5 million unintentional injuries are seen in physician offices and emergency departments in the U.S. each year, according to the Centers for Disease Control and Prevention (CDC). Personal injury cases can range from auto accidents and medical malpractice to product liability and wrongful death.
While many personal injuries happen unexpectedly, others occur with some level of knowledge of the risks involved in the activity that led to the injury. This is what is known as an assumption of risk.
What is Assumption of Risk?
Assumption of risk refers to a legal doctrine that may prevent an injured person from winning a personal injury lawsuit or receiving an insurance settlement in relation to a personal injury. The basic concept is that the defendant is not responsible if the plaintiff knowingly exposed him or herself to a risk that could knowingly cause harm.
Assumption of risk is considered an affirmative defense in the law of torts under the Federal Rules of Civil Procedure. This means that a plaintiff is unable to seek damages if it can be proven that he or she knew of a hazard but still voluntarily exposed him or herself to the risk.
For an assumption of risk defense to be successful in court, the defendant must demonstrate that:
- The plaintiff had knowledge of the risks involved
- The plaintiff voluntarily accepted these risks through an oral or written agreement, or consent was implied by his or her conduct
Express Assumption of Risk
“Express assumption of risk” occurs when an individual signs a waiver before engaging in a dangerous activity. For example, you may have to sign a waiver prior to using equipment at the gym or before you go skydiving. If you sign an express assumption of risk agreement, you are implying that you understand that it is a potentially dangerous activity and that you may get injured.
However, even if you sign an express assumption of risk agreement, you may still be able to sue under certain circumstances. For example, you may sign a waiver before entering a trampoline park as you know that there is a possibility of injury. However, you do not expect a trampoline to have frayed netting. If you are jumping and the netting breaks due to the park owner’s failure to have the netting repaired or replaced, you may still have a personal injury case.
Implied Assumption of Risk
Implied assumption of risk can be more challenging to prove than express assumption of risk due to a lack of a written agreement or waiver. Instead, there is usually some form of oral statement or conduct that shows that the plaintiff was aware of the level of risk.
While implied assumption is a broad category, there are certain types of conduct that cannot be waived, such as criminal behavior against a plaintiff, behavior that is unforeseeable, and voluntary behavior which becomes involuntary in some situations.
There are two main types of implied assumption of the risk. Primary assumption of the risk occurs when a plaintiff confronts a known risk of an activity. Secondary assumption of the risk occurs when a plaintiff is told about a risk but still voluntarily engages in the activity despite this knowledge.
A personal injury case may also result in modified comparative negligence which allocates damages among the parties involved in the lawsuit.
Proving Assumption of Risk
Under Arizona law, assumption of risk is a question of fact for the jury. And even if the jury finds that the plaintiff assumed risk, they may assign percentages to both the plaintiff and defender, and may still decide in favor of either party.
If you have suffered an injury, you may be worried about assumption of risk and if it applies to your case. When you meet with a personal injury attorney, your case will be evaluated to determine if there was any assumed risk. Even if there is a small level of assumed risk, you could still have a case, although any compensation rewarded may be less than if there were no assumed risk.
Assumption of risk does not apply in cases where the plaintiff’s injuries exceed the amount of risk that he or she assumed. For example, if the plaintiff is tackled during a football game, the likelihood of a successful claim is minimal due to the known amount of risk involved in football. However, if there is an inherent risk like a sinkhole in the middle of the field, the plaintiff had no way of foreseeing this event and therefore did not have an assumed risk for any injuries sustained due to falling in the hole.
Get Help With Your Personal Injury Case in Arizona
Assumption of risk is a common defense in many Arizona personal injury cases. Assumption of risk can be a valid defense if the defendant is able to prove that the injured person “voluntarily” assumed a known risk.
If you have suffered an injury and believe that you are entitled to compensation, our experienced personal injury law team can help you with your case.
Call our Personal Injury team at (480) 467-4392 to discuss your case today.