By: Emily Stringer
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Assumption of Risk
In personal injury law, the term assumption of risk is often mentioned. What exactly does that mean? While it seems obvious, there is more than meets the eye.
Assumption of risk is a defense in the law that can be used in a case of negligent action. It refers to a legal doctrine where an individual is barred from recovering damages from an injury when they exposed themselves to a known danger. This prohibits a plaintiff from seeking damages based on the fact the plaintiff knew about the risks of an activity but participated regardless and willingly.
This defense is often used in liability cases such as “no trespassing” or “enter at your own risk” signs, activities involving dangerous chemicals or substances, waiver and release provision disputes, or extreme sports activities.
For a successful assumption of risk defense, the defendant must prove the plaintiff had knowledge of the risk and the plaintiff voluntarily accepted said risk either through a waiver, spoken words, or conduct. If the plaintiff assumed the risk, the defendant does not owe any legal duty to the plaintiff.
The element of a negligence claim would not be met, and the plaintiff cannot sue for injuries caused either by risks inherent in the situation or dangers created by the defendant’s negligence.
An inherent risk is one that is inherent to an activity. This also includes a risk that cannot be reduced or minimized in an activity, such as the risk of death skydiving.
The defendant bears the burden of proof when it comes to asserting an assumption of risk defense and is responsible for showing that the danger was obvious or apparent, or that the conduct was inherently dangerous. The assumption of risk can be proven by a written agreement such as a waiver before participating in a dangerous activity. Assumption of risk are usually decided by the courts, meaning the court will decide if the risk was assumed.
Implied assumption of risk does not involve a written agreement, but verbal statements or conduct. This is more difficult to prove in court than with an actual written agreement and require a more thorough investigation.