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What is Risk Assumption in Personal Injury Cases?

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On a personal injury level, some activities like riding roller coasters, going to trampoline parks, and sky diving are fun but also risky. 

If someone gets injured while doing these activities, they might have a hard time getting money from the person who injured them because they knew the risk behind it. 

In this article, we'll discuss risk assumption and how it works in your case.

Summary of the Key Findings

  • There are two types of risk assumptions that are important to know about, and they are primary and secondary assumption of risk.
  • The assumption of risk is known as an affirmative defense in some jurisdictions. 
  • In most U.S. states, the Assumption of Risk Doctrine has been replaced by contributory and comparative negligence doctrines.

What Is Assumption of Risk?

A business person reading a law bookThe Assumption of Risk is a legal concept governed by common law that refers to a plaintiff's inability to recover for the tortious actions of a negligent party in circumstances where the injured plaintiff voluntarily accepted the risk of those actions [1]

On the other hand, comparative negligence allows plaintiffs to recover damages from defendants even if they are found to be partially at fault. Still, their recovery is reduced by their degree of fault.

In certain jurisdictions, the assumption of risk is known as an affirmative defense. That implies it's something the defendant must counter against the allegation made against them.

This sort of argument involves introducing evidence to negate liability even if a negligence case is established.

If they raise it as a risk defense, it's up to them to prove to the jury that you knew about the risk and decided to take it. Ultimately, the jury decides these questions of fact, including whether you knew about the risk.

2 Types of Implied Assumption of the Risk

A lawyer pointing to a book with a pen

There are two types of risk assumptions.

1. Primary Implied Assumption of the Risk

In "primary assumption of the risk," a person accepts the risk knowing that the others involved are not responsible for their safety. 

An example of a primary assumption is when a person attends a sporting event. If something bad happens to them, they can't sue because they knew it was a possibility when they chose to attend the game.

2. Secondary Implied Assumption of the Risk

Also known as an express assumption of risk, when someone takes part in an activity that has a known risk, they are responsible for their safety. 

For example, the secondary assumption of express assumption occurs if you choose to go bungee jumping, you know that it is a dangerous activity and accept such risks.

Examples of Risk Assumption

A lawyer reading a book with a pen in hand

If someone assumes the risk in a personal injury lawsuit, they may not be able to recover damages such as workers' compensation unless they can prove that:

  • The defendant was either severely careless or reckless, intentionally harmed the plaintiff, or injured her in some other way. For example, the absence o safety equipment.
  • The defendant's behavior fell outside the bounds of what one would expect during such an event impacting the injured plaintiff.

Another example of risk assumption is if you go to a trampoline park and sign a waiver releasing the company from liability in case you are injured. The company is not responsible if you are injured while using the trampoline because you assumed the risk by signing the waiver.

“If a defendant wants to assert an affirmative defense, he or she must be able to admit evidence to help support their claim. If a jury believes that the defense has met its burden in proving the affirmative defense applies, then the defendant can avoid a conviction.”
- The Rodriguez Law Group, LA Criminal Defense Attorney

 

What Are Ways to Deal With Risk?

A lawyer looking at stacks of books

Now that you know the different types of risk assumptions, it's important to understand how this concept can affect your personal injury case.

Based on my experience, the process involves a few ways to deal with risk.

  • Risk Assumption: A risk contingency plan is a plan that defines what will happen if a risk occurs. This option accepts the potential risk and then continues assuming that the contingency plan lowers the risk to an acceptable level.
  • Risk Avoidance: We can reduce the risk of something bad happening by getting rid of what is causing it or by reducing the consequences if it does happen.
  • Risk Limitation: To limit the risk, we will make specific changes to our planned activities. This will happen when the risk can't be avoided any other way, or it would be too expensive to take any other measures.
  • Risk Transfer: There are ways to reduce the risk of risk transfer or something bad happening. For example, you could buy insurance. This will help protect you if something does happen.
  • Risk Retention: This is when you choose to keep the risk and not transfer it. You will do this if the cost of transferring the risk is greater than the cost of retaining it. 

In my opinion, the best way to deal with risk is to have a contingency plan. This way, you can be prepared for if something does go wrong.

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FAQs

What is the assumption of risk in risk management?

In risk management, the assumption of risk is the decision to take on risk in hopes that the contingency plan will lower the risk to an acceptable level.

What are the assumptions in risk assessment?

In risk assessment, assumptions are made about the likelihood and consequences of events that could happen.

What is a risk assumption in personal finance?

In personal finance, risk assumption is the decision to take on debt in hopes that the contingency plan will lower the risk to an acceptable level.

In conclusion, risk assumption is a decision to take on risk in hopes that the contingency plan will lower the risk to an acceptable level. This concept can affect your injury case if you have been injured in an accident and believe that the other party may be at fault. 

Contact Schmidt & Clark, LLP for a free consultation and speak to a personal injury lawyer as soon as possible to assess your case and determine if the Assumption of Risk Doctrine applies.


Reference:

  1.  https://www.law.cornell.edu/wex/assumption_of_risk 

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