When engaging in perilous activities, most people assume that accidents will not occur and if they do, there is a general assumption that they will be compensated for the damages. Unfortunately, this is not always the case thanks to a concept known as “assumption of risk.” Here is what you need to know about this legal term.
What are the elements of assumption of risk?
Under the doctrine of assumption of risk, a person who engages in an activity with full knowledge and acknowledgment of an associated risk cannot claim damages for injuries that occur as a result. For example, if a student engages in a school track jump and injures himself, the school is not liable for damages if there was no negligence on its part. The same applies to the workplace. If a worker knowingly accepts work on a dangerous task with full knowledge of possible repercussions, then he/she cannot sue the employer in civil court for injuries incurred when performing the task (workers compensation benefits would apply in this situation, but these benefits are distinct from civil damages).
Another area that assumption of risk applies is in premises liability. It is typically hard to win a case against a defendant whose premises had an “enter at your own risk” or “no trespassing” sign. The main supposition here is that the risk is recognizable and trespassing means that the plaintiff understands and assumes the risk. Therefore, the defendant is not legally indebted to the plaintiff in all these cases.
Types of assumption of risk
Assumption of risk can either be implied or express. Implied assumption of risk is when a person knows about the consequences of a certain action but still proceeds to expose himself to the risk. A good example is when someone goes diving or skiing with full knowledge that these activities can be extremely dangerous.
Express assumption, on the other hand, is when a person acknowledges that he or she is aware of the risk beforehand through a legally binding agreement such as a written contract. A common example is when you are asked to sign a waiver before engaging in dangerous activities.
Comparative and contributory negligence rules
In some cases, both parties may share responsibility for the assumed risk, particularly if it is found that they had both been acting in a way that is not acceptable under normal circumstances. This usually involves asking a jury to use the rules of comparative and contributory negligence to determine which percentage of the accident was caused by the plaintiff.
In the event of an accident involving a pedestrian and a speeding vehicle, for example, a jury may rule that 60% of the accident was as a result of jay walking while the other 40% was caused by the speeding driver. In some states, the driver would have to pay for 40% of the damages incurred by the pedestrian. In other states, the driver would not have to pay anything since the pedestrian was responsible for more than 50% of the accident.
It is always advisable to assess the risk of engaging in a potentially dangerous activity. If you sustain any injuries due to the negligence of another person or party, you have the right to sue for the damages. For any legal guidance or assistance, you can count on Ryan R. Cox & Associates, LLC. Contact us anytime at our office.