What is Assumption of Risk in Personal Injury Law?
The assumption of risk in a personal injury law case is an affirmative defense. When alleging this, the defendant is claiming that the plaintiff understood the risk of injury and assumed responsibility for any accident that happened. Further, the result of a successful assumption of risk claim is total avoidance of responsibility for a personal injury case.
Personal injury claims are typically built around an allegation of negligence. To prove negligence, a plaintiff must show that the defendant violated their duty to protect the plaintiff from injury. However, a defendant that raises an assumption of risk defense is alleging that they never owed the plaintiff a duty in the first place.
Ultimately, there are three different categories of assumption of risk under New York law. The strongest of the three is known as the primary assumption of risk. The second category involves express assumptions of risk, often in writing. The third category includes implied assumption of risk. Each of these categories can impact a case in different ways. To learn more, speak with a New York City personal injury lawyer as soon as possible.
Primary assumption of risk
The primary assumption of risk is the strongest of the three. It is also the most narrowly used form. It describes situations where the nature of an activity would be fundamentally changed if the participant did not assume the risk. The most common example where this applies is during organized sporting events. The courts assume athletes understand the risks associated with a specific sport, which is why they prevent injured players from suing each other following an on-the-field injury. This defense is rarely available outside of sporting events.
Express assumption of risk
An express assumption of risk involves an individual affirmatively acknowledging that they have assumed the risk of injury. Typically, this is done in writing. This waiver is common in a variety of activities, from sky diving to white water rafting. These documents are usually standardized forms where the person waives any claim if they are injured.
These agreements are not always valid under New York law. Specifically, any facility that charges a fee for a recreational activity will likely be prevented from asserting an assumption of risk defense. Whether or not a specific facility or activity is barred from raising an express assumption of risk claim is usually a question for the court.
When the assumption is implied
Finally, there is implied assumption of risk. This is also known as secondary assumption of risk. When the courts determine there was no express assumption of risk in writing, it does not mean the defendant is entirely out of luck. An implied assumption of risk occurs when it appears the plaintiff voluntarily assumed the risk despite the lack of a written waiver.
Primary and express assumption of risk is typically a complete bar to a plaintiff’s recovery. The same is not true for the implied assumption of risk. In these cases, the courts will apply a comparative negligence standard to determine the degree of each party’s fault. The court can then limit the damages awarded to the plaintiff in proportion to the amount of risk they assumed. While this might prevent a plaintiff from recovering the full value of their injury claim, it provides a better option than a full bar on compensation.
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If you have suffered injuries due to the negligence of another party, you deserve to be compensated. However, under certain circumstances, it is common for a defendant to raise a defense based on your assumption of risk. If the defendant can show you were aware of the risk of injury and assumed it anyway, they could avoid paying the compensation you deserve.
At Douglas & London, we have experience taking on these types of claims. To learn how our team can help you defeat these them, and get the compensation you deserve, schedule a free consultation as soon as possible.