Assumption of Risk in a Personal Injury Case

"Assumption of the risk" is a legal doctrine that may prevent an injured person from winning a personal injury lawsuit or getting an injury-related insurance settlement. The idea is that the plaintiff can't hold the defendant responsible if the plaintiff knowingly exposed him or herself to the possibility of an injury. This article discusses the various categories of assumption of the risk and how it can affect an injury case.

Express Assumption of the Risk

"Express assumption of the risk" applies when a plaintiff has acknowledged, before the injury, that he or she is aware of the risk.

Typically, the acknowledgment is in some kind of written contract, although any kind of legally binding agreement will work. The most common example is a waiver of liability signed before participating in a dangerous activity.

Often at issue in cases where the defendant presents an express assumption of the risk defense is whether the plaintiff agreed to assume the risk of the particular harm that occurred. Another common question is whether the occurrence was so negligent (i.e. grossly negligent) or intentional that the harm exceeded the scope of the plaintiff's agreement.

Finally, regarding waivers of liability specifically, the parties frequently will contest whether or not the plaintiff was adequately aware of the waiver, or whether it was hidden in the contract.

As discussed below, the comparative and contributory negligence rules in many states have limited or eliminated other categories of assumption of the risk, but express assumption of the risk is still almost universally accepted as a complete defense to personal injury and other types of cases.

Implied Assumption of the Risk

"Implied assumption of the risk" applies when, although no agreement has been made, a plaintiff knows that there is a risk and exposes him or herself to it anyway. For example, courts have held that a plaintiff participating in a "pick-up" sports game impliedly assumes the risk of injury from the kind of contact that is typical to the sport. A plaintiff, however, does not assume the risk of injury from overly dangerous or aggressive behavior that is not a part of the game.

Effect of Contributory and Comparative Negligence Rules

Not all personal injury suits have one completely guilty party and one completely innocent party. Often, both parties may have been acting in a manner that was not normal and cautious under the circumstances.

Under the rules of comparative and contributory negligence, and depending on the state, there are two different ways this situation can affect a lawsuit. In all states, a jury is required to find what percentage a plaintiff contributed to an accident.

For example, a jury may say that a plaintiff pedestrian who was jay walking was 60% responsible and the speeding defendant driver that hit the pedestrian (and who the pedestrian then sued) was 40% liable. In some states, the defendant driver would be required to pay the plaintiff pedestrian for 40% of the pedestrian's damages. In other states, however, the defendant driver would not be required to pay anything because the plaintiff pedestrian was more than 50% responsible for the accident.

(To find the comparative and contributory negligence rules in your state, see this state chart).

Many states have eliminated the defense of implied assumption of the risk because contributory and comparative negligence rules serve the same purpose. In other words, arguing that the pedestrian assumed the implied risk of being hit by a car when he jay walked is the same as arguing that his negligence contributed to the accident.

One major difference is that a plaintiff would lose the case outright if he was found to have assumed the risk under traditional assumption of the risk rules, but comparative and contributory negligence rules allow for more fine-tuned results. As mentioned earlier, however, express assumption of the risk is not eliminated by contributory and comparative negligence rules. This is because express assumption of the risk has nothing to do with the plaintiff's own negligence, but with his making a legally binding acknowledgment (i.e. a contract) of the risk.