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  • Writer's pictureRobert Schuerger

What Is "Assumption of Risk" in a Personal Injury Case? | Is It Important?

Anyone injured due to someone else's negligence should seek financial compensation. Personal injury claims are one of the most efficient ways to ensure the at-fault party takes responsibility for what they did.

However, victims must consider that the other party can defend themselves through the "assumption of risk." It's a legal doctrine that limits the claim's compensation if the plaintiff voluntarily accepted the risk involved in certain activities that led to the accident.

An effective assumption of risk defense in a personal injury claim could affect the victim's ability to recover compensation, even if the defendant's "negligence" affected them in any way.

Understanding when the assumption of risk occurs can help victims plan the strategy for their claim more efficiently, allowing them to determine whether they're eligible for compensation under Texas personal injury law.

Hiring an attorney can help victims go through their personal injury lawsuits more efficiently, as all cases are different. Here's an overview of how the assumption of risk works in the state and what the injured party can do to defend themselves.

About Assumption of Risk in a Personal Injury Lawsuit

About Assumption of Risk in a Personal Injury Lawsuit

"Assumption of risk" allows at-fault parties to defend themselves if they get sued. If they can prove that the victim knowingly (and willingly) exposed themselves to the possibility of getting injured, they could prevent them from getting compensation.

Depending on the degree of "risk" the victim took and how well the defendant's strategy is, the victim may not be able to recover compensation at all.

Some activities, such as sporting events, carry an inherent risk. Those who go rock climbing, for example, run the risk of falling and getting injured.

People who willingly participate in these activities are "knowingly taking a risk." In these cases, it's more difficult to hold the defendant liable for certain injuries.

However, the assumption of risk doctrine doesn't apply to all injuries. It only applies to "known dangers." What this means is that, if the victim thinks they can get injured because of a certain hazard when performing their activity, and they get injured later because of that, they probably won't be able to recover compensation.

On the other hand, if the victim couldn't reasonably foresee the potential injuries, they may still be able to get money for what happened.

Understanding where the assumption of risk applies may not be easy, which is why it's important to get help from a professional to evaluate every angle of the case.

What Are the Different Types of Assumption of Risk?

There are two different "ways" where the assumption of risk applies: expressed and implied. It's crucial to understand how these two terms work to know if the victim has a solid argument when filing their claim.

Implied Assumption of Risk

The implied assumption of risk states that the plaintiff accepts the risk of injury even if they didn't express it in writing or orally. Here, it's implied that the person understands a certain activity's risks, so if they participate in it, they're voluntarily assuming these dangers.

Express Assumption of Risk

Express assumption of risk, on the other hand, involves physical evidence that states the plaintiff was aware of and accepted the risks that came from a certain activity.

In most cases, this includes signed contracts between two or more parties. The contracts should include a clause that explains the risk of harm from doing an activity. A common example of this is when the person signs a liability waiver before engaging in the activity.

Even though this type of assumption of risk is common in cases involving written contracts, it can also involve oral agreements.

What About Primary and Secondary Assumptions of Risk?

Some jurisdictions divide the implied assumption of risk into two extra categories. The primary assumption of risk establishes that the defendant didn't have a duty of care to the victim, meaning that they can't be found negligent for what happened. It often applies to sporting events.

On the other hand, the secondary assumption of risk establishes that the defendant owed a duty of care to the victim/plaintiff and breached it. Here, the assumption of risk gets evaluated as if it were a case of comparative negligence.

Where Does Assumption of Risk Apply in Texas?

Texas mostly uses "express assumption of risk" arguments. This means that the defendant must prove the following:

  • The activity the victim performed was inherently dangerous.

  • The victim was aware of the risks of the activity in advance.

  • The victim gave consent to participate in the activity.

  • The victim voluntarily engaged in the activity even though they knew the risks.

What this means is that, at least in Texas, it's more difficult for defendants to use the "assumption of risk argument." If the defendant can't prove there was clear written or oral consent to participate in a risky activity, they may not be able to deny the plaintiff's claim.

Here are common scenarios where a defendant is more likely to use the argument of assumption of risk:

Premise Claims

Many construction sites, for example, are required by law to post warning signs. This is to warn people nearby that they shouldn't walk around the area.

If someone were to get injured in said construction site, the victim would not be able to recover damages from their lawsuit, as they were fully informed of the danger and still decided to enter the site.

It can also apply in cases when there's a "Wet Floor" sign in a store or someplace similar. If the plaintiff still decides to walk through that area even though they were warned, they will have a hard time filing a legal claim against the company.

Sporting Events

Sporting events are where the "assumption of risk" arguments are more common. When someone decides to play a sport, they willfully accept the risks that come from it, regardless of what they are.

A soccer player, for example, can't sue their team management for a sprain they got while playing. This is because this is a risk that comes from the activity.

It's crucial to remember that this only applies to known dangers. If the person's injury didn't happen because of actions that are common for a certain sport, they may still be able to recover damages from their lawsuit.

Dangerous Activities

People who willingly participate in some dangerous activities are considered to be accepting the inherent risk of injury. Those who get into an amusement park ride, for example, accept the inherent risks that come from it, such as feeling nauseous or fainting.

Of course, if the ride were to fail in any way, the plaintiff would have enough evidence to file a successful claim.

What's the Difference Between Assumption of Risk and Comparative Negligence?

Assumption of risk and comparative negligence are two common types of affirmative defense. Although they're similar, there's a key difference between the two.

When arguing the assumption of risk, the defendant must prove the plaintiff knowingly (and voluntarily) participated in an activity with a risk.

With comparative negligence, on the other hand, the defendant must prove that the plaintiff was responsible for their injury, at least to some degree.

Texas works under a "modified" comparative negligence rule, which states that plaintiffs can recover damages even if they're found partially at fault for their injuries. However, if their percentage of fault exceeds 50%, they'll lose their right to get compensated.

Can Risk Assumption Affect a Personal Injury Case?

Yes, it can. If the defendant successfully proves all of the elements of the "assumption of risk" mentioned above, the plaintiff can lose their right to get compensated. In other cases, they could get the plaintiff to receive less money, which can also affect their recovery process if they are severely injured.

Why Should Victims Hire an Experienced Personal Injury Lawyer in These Cases?

Why Should Victims Hire an Experienced Personal Injury Lawyer in These Cases?

Hiring a personal injury lawyer in Houston ensures the plaintiff can evaluate their case from every angle. Sometimes, it's complicated to create a counter-argument for an "assumption of risk" defense, which can affect the victim's ability to get money to pay their bills.

With the help of a lawyer, these people can go over their case from another perspective to determine if they can defend themselves against an assumption of risk argument. Lawyers also help plaintiffs get enough evidence for the claim, talk to potential witnesses, and negotiate with insurance companies. They can also help with questions like what is duty of care in personal injury law?

Bottom Line

The assumption of risk doctrine can change the outcome of a case if the defendant is successful in their claim. However, this doesn't mean that they're off the hook as soon as they make their argument.

It's crucial to go over all the case details with legal professionals. If there's an assumption of risk involved, the attorney can help the victim come up with a better strategy to secure their compensation, at least to a certain degree.

The team at Schuerger Shunnarah Trial Attorneys has former insurance workers. These people are familiar with all the tricks these companies use to get victims less compensation than what they deserve. They can also explain the burden of proof in a personal injury case.

Thanks to this legal team, victims will understand how the at-fault party may defend themself by using the "assumption of risk" argument. They will also be able to create a compelling counter-argument, depending on the circumstances.

The firm's slogan, which states "We Go to War for You," shows the team's commitment to helping people build the best case they can to ensure they seek justice for what happened. Those interested in getting help can schedule a free consultation today.


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