Posted in Blog on January 29, 2021
There are times when individuals participate in activities that may require them to assume some sort of risk. In some cases, this risk is fairly obvious, and a person chooses to participate in an activity regardless of the risks. Sometimes, a person assumes a risk by signing a waiver of liability, but that is not always the case. Here, we want to discuss what an assumption of risk looks like and how this can affect a person’s ability to recover compensation in the event they are injured while participating in certain activities.
“Assumption of risk” is a legal doctrine that can prevent an injury victim from receiving compensation through an insurance settlement or a personal injury lawsuit verdict in the event they sustained their injury by participating in a certain activity. The idea behind assumption of risk is that the individual who sustains an injury should not be able to hold another person accountable if the “victim” knowingly exposed themselves to the possibility of injury. There are two types of assumptions of risk that we want to discuss – “express” assumption of risk and “implied” assumption of risk.
“Express assumption of risk” involves situations in which the plaintiff (the injury victim) acknowledges that they are aware that there are risks involved in an activity that they are going to participate in. With most cases of express assumption of risk, we will see that this involves acknowledging risk in the form of signing a written contract or through some other type of legally binding agreement. The most common way that a person expresses their assumption of risk is by signing a waiver of liability before participating in an activity. Some of the most common types of activities that a person may sign a waiver to participate in include:
When an express assumption of risk has been given, this generally absolves a potential defendant of liability should an injury occur through the normal course of the activities involved.
However, if an accident occurs that revolves around something that was completely unexpected, a defendant may hold liability. For example, if somebody signs a waiver of liability before bungee jumping but sustains a significant laceration due to exposed metal while walking to the top of the bungee tower, this could open the defendant to liability. The plaintiff was likely not aware that they would sustain an injury because the bungee operator failed to properly maintain their premises.
Additionally, express assumption of risk is not likely going to apply if the actions of the defendant were intentional or grossly negligent and caused harm to the injury victim.
Finally, there is often dispute over whether or not the person who signed a waiver was sufficiently made aware of what the waiver said as well as whether or not the waiver was hidden inside of a larger contract and nearby unnoticed.
“Implied assumption of risk” applies to situations where there is no formal waiver or contract signed between a plaintiff or defendant. However, there are various situations in which a person knows that there is a risk involved before they participate in an activity and choose to expose themselves to the danger anyway. For example, anytime a person goes to a local park where there is a basketball court and plays in a “pick-up” game, they are aware that there are risks involved. By participating, a person is generally giving their implied assumption of risk. The average person understands that participating in pick-up sports games comes with various risks.
However, even when an implied assumption of risk is given in a situation, this does not completely absolve a defendant from liability. In the situation described above, a person could still be held liable if they are overly aggressive or intentionally cause harm to somebody else while playing.
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