You are currently viewing Understanding “Assumption of Risk”
Image by katemangostar on Freepik

Understanding “Assumption of Risk”

Have you ever participated in an activity with inherent risks, like skiing or rock climbing? If so, you may have encountered the legal concept of “Assumption of Risk.” This doctrine can significantly impact your ability to recover damages if you’re injured during such activities. Understanding Assumption of Risk is crucial for risk-takers in order to protect themselves and navigate potential legal situations.

What is Assumption of Risk?

Simply put, Assumption of Risk states that if you willingly participate in an activity with inherent risks and get injured, you might not be able to sue the organizer or other participants for damages. It essentially implies that you accepted the possibility of harm by choosing to engage in the activity.

Two Types of Assumption of Risk

  1. Primary Assumption of Risk: This occurs when you explicitly agree to assume the risks through a signed waiver or release form. Think of signing a waiver before skydiving or participating in a high-ropes course.
  2. Implied Assumption of Risk: This assumes you inherently understand the risks involved in an activity based on its nature and your experience. For example, skiing inherently carries a risk of falling, and you’re assumed to be aware of that when you hit the slopes.

Assumption of Risk as a Defense

In personal injury cases, Assumption of Risk can be raised as a defense by the party being sued. To be successful, they must prove:

  • You voluntarily participated in the activity.
  • You knew or should have known the inherent risks.
  • Your injury arose from an inherent risk, not their negligence.

There are, of course, some limitations to this defense:

  • It doesn’t apply if the defendant acted recklessly or intentionally caused your harm.
  • Unequal bargaining power or the defendant’s own negligence can weaken it.
  • Laws and interpretations of Assumption of Risk vary by jurisdiction.

To be clear, Assumption of Risk doesn’t excuse all responsibility. Even with inherent risks, organizers still have a duty to act reasonably and are liable for intentional harm or negligence beyond the inherent risks. Additionally, this legal concept deals with recovering damages after an injury, while Assumption of Liability involves agreeing to financially cover potential harm beforehand.

Real-World Examples

To better understand this legal doctrine, let’s take a look at some examples from life in which Assumption of Risk may or may not apply.

Assumption of Risk: Applicable

In the following examples, Assumption of Risk applies, and participants are responsible for their own injuries.

Football Injury: A player gets tackled during a regular game, sustaining an injury. Assumption of Risk likely applies, barring recovery against teammates due to the inherent risk of contact in football.

Hiking Fall: While following a marked trail, someone falls on uneven terrain and gets hurt. Assumption of Risk might limit liability for the park, as the risk was inherent and foreseeable.

Signed Waiver: Before participating in a high-ropes course, a participant signs a waiver acknowledging inherent risks. If injured due to a normal challenge, Assumption of Risk likely applies, limiting legal action against the course operator.

Open Water Swimming: Despite warnings, someone swims in rough waters and gets pulled under. Courts might find Assumption of Risk applicable due to the obvious danger and disregard for warnings.

Horseback Riding Mishap: A rider falls off a properly trained and maintained horse, suffering injuries. Assumption of Risk could limit liability for the riding stable, given the inherent risk of falls despite proper precautions.

Ddanger sign
Photo by Kelly Sikkema on Unsplash

Assumption of Risk: Inapplicable

In the following examples, Assumption of Risk does not apply. This means that one party was negligent and can likely be held liable for the injury.

Gym Equipment Failure: A weight machine malfunctions due to poor maintenance, causing injury. Assumption of Risk wouldn’t apply due to negligence beyond inherent risks.

Amusement Park Ride Malfunction: A ride malfunctions due to faulty design or lack of proper inspection, leading to injuries. The inherent risk of riding isn’t a defense, as negligence caused the harm.

Hidden Danger on Hiking Trail: If a hidden hazard like a broken bridge on a marked trail causes injury, the park could face liability despite inherent risks, as they failed to maintain a safe pathway.

Unequal Bargaining Power Waiver: An employee is pressured to sign a poorly drafted waiver before starting a risky job. Courts might deem the waiver invalid due to unequal bargaining power, negating Assumption of Risk.

Intentional Harm During a Sport: If a player intentionally injures another during a game, Assumption of Risk wouldn’t apply, as the harm wasn’t an inherent risk but intentional misconduct.

What About Children?

While adults engage in activities at their own peril, understanding inherent risks, children lack the same cognitive abilities. This creates a complex legal landscape when they’re injured during “risky” activities. Some states offer additional protection, holding adults responsible for supervising children if injuries occur due to not stopping dangerous behavior.

There are cases that highlight this nuance. In New York, for example, a child injured under adult supervision while performing a dangerous act received compensation, emphasizing the caregiver’s duty to intervene. Similarly, an attorney successfully argued against “Assumption of Risk” for a child injured on an unsupervised trampoline, demonstrating the limitations of the doctrine for minors.

California clarifies things further. While child-signed waivers exist for specific activities with parental consent, the parent ultimately holds the legal weight due to minors’ ability to disavow contracts. This complexity underscores the importance of understanding specific state laws and seeking legal guidance when children are involved in potentially risky activities.

Navigating Assumption of Risk in Your Case

Every situation is unique, and the applicability of Assumption of Risk depends on specific facts and circumstances. Consulting with a personal injury attorney in Waco is crucial to understanding how this concept might impact your individual case and the potential strengths or weaknesses of any claims or defenses involving it.

Understanding Assumption of Risk is essential for anyone engaging in activities with inherent risks. While it doesn’t mean every accident absolves responsibility, it emphasizes the importance of awareness and responsible participation. Remember, legal advice is key to navigating the complexities of Assumption of Risk and protecting your rights in personal injury situations.

Featured Image by katemangostar on Freepik