Does “Assumption of the Risk” Mean I Can’t Sue for My Injuries?
One of the most common ways in which potential defendants dissuade injured victims from pursuing their rights to sue for financial recovery following an accident is by claiming that the victim “assumed the risk” of injury. This can, unfortunately, be an effective way of preventing plaintiffs from pursuing the settlement or verdict they are rightfully owed, because “assumption of risk” is in fact a legal defense which can limit or negate a defendant’s liability. But what is and what is not assumption of the risk is a complex legal and factual analysis, and you should not take the word of a defendant – who stands to lose quite a bit in a successful personal injury suit following a serious injury – in determining whether you truly did assume the risk.
Defining Assumption of the Risk
Personal injury law is largely a creature of state law, meaning there will be differences in how each of the 50 states will apply principles of personal injury law, but assumption of the risk is a common defense across states, even if there might be slight differences in how it is applies.
Basically, assumption of the risk says that a plaintiff cannot successfully pursue a claim for an injury caused by a defendant’s actions (or where the injury occurred due to dangerous conditions on the defendant’s property) when the plaintiff knew about the types of dangers associated with an activity and nevertheless chose to pursue the activity, thus “assuming the risk.”
The assumption of the risk defense often comes up in context of sporting and recreational activities which include an inherent risk, such as playing full-contact sports like football, skiing and snowboarding, and gym-related activities. The defense might also come up in a premise liability action such as where a plaintiff saw that there was a dangerous condition, for example where a plaintiff saw an icy set of stairs and nevertheless proceeded to walk up the stairs unnecessarily.
Pushing Back on Assumption of Risk
Again, although assumption of risk can be a valid defense to a personal injury suit, you should not take a defendant’s word for it and should instead consult with unbiased personal injury attorney who can evaluate your situation and determine whether assumption of the risk indeed applies.
There are a number of situations in which the defense will not actually prevent a plaintiff’s successful financial recovery, including where:
- The plaintiff was not actually made aware of the true extent and/or nature of the risk
- The defendant’s actions were outside the scope of the risk that the plaintiff assumed
- The defendant acted in a reckless manner
- The defendant failed to take precautions not inconsistent with the nature of an activity’s risk (such as providing safety gear)
- The defendant escalated the inherent risk in an activity (e.g. a defendant intentionally injured the plaintiff during a sporting event)
Experienced Personal Injury Attorneys in the Inland Empire
At McCune Wright Arevalo, our personal injury team – led by by partner Cory Weck, a Marine Corps officer with over 20 years of service to his country and 15 years of experience litigating personal injury cases – has repeatedly won verdicts and settlements on behalf of clients across the Inland Empire in the millions of dollars. Our attorneys understand that the fear, anxiety, and pain that you and your family are going through following a personal injury, and we are dedicated to doing everything we can to help our clients get the help they need. Contact us today to schedule a consultation with one of our experienced personal injury attorneys.