Understanding Assumption Of Risk

A minor collision between two vehicles is typically regarded as a straightforward personal injury case. However, it can rapidly become a complicated legal matter. Disputes regarding causation can result in a vicious fight.

What Does Assumption of Risk Mean in a Personal Injury Case?

The legal doctrine of assumption of risk applies to personal injury law. Specifically, it is a legal defence used by a defendant to avoid responsibility for an injured plaintiff. The assumption of risk doctrine holds that a plaintiff who knowingly and willingly places themselves at risk of injury in an activity is responsible for any resulting injuries or damages.

Here is an illustration. You are aware that hockey pucks frequently fly into the stands during games. If you attend a game, you assume the risk of being struck by a hockey puck and suffering a head injury. Neither the arena owner nor the hockey teams would be responsible for your injuries or damages.

Another example of assuming risk is swimming in a pool without a lifeguard. Suppose there are signs indicating that swimming is at your own risk and no lifeguards are on duty. If you and your children choose to swim voluntarily, you may accept the possibility of a child injury.

Exceptions to these rules exist when the victim could not have anticipated the assumption of liability.

If the pool owner failed to maintain the drains and your injury was caused by the drains, the pool owner may be liable. Similarly, if the arena owner failed to install the necessary safety measures to protect spectators from stray hockey pucks, he or she could be held liable.

Assumption of Risk is Fact Specific 

The courts examine the particulars of a case to determine whether the plaintiff assumed the risk of an activity. For instance, roller coaster riding is a dangerous activity. There are numerous potential sources of injury. A rider may still choose to ride a roller coaster despite being aware of the risk.

Suppose, however, that the seatbelt mechanism fails and the passenger is ejected from the vehicle. Imagine that he suffers catastrophic injuries. If the ride’s owner and operator failed to maintain and inspect the roller coaster to prevent accidents, they may be held liable.

Therefore, assumption of risk is not an absolute bar to damages in all cases involving personal injury.

Types of Assumption of Risk in New York Personal Injury Cases

There are typically three types of risk assumption: primary, express, and implied. In organised sports and recreational activities, primary risk assumption is commonly used. It is generally assumed that a participant with experience understands and accepts the risks associated with the sport or activity.

Typically, express assumption of risk requires a contract or agreement between the parties that includes an assumption clause. The individual participating in the activity signs a waiver and agreement stating that they are aware of the risks and consent to participate regardless. Frequently, the agreements release the owner or operator from all responsibility for damages.

In New York, express assumption of risk agreements may or may not be valid. For instance, if the owner or operator of the facility charges a fee for the activity, express assumption of risk may not be a valid defence.

Implied assumption of risk asserts that a person is aware of an activity’s risks and dangers but assumes them voluntarily, despite the absence of a written statement to that effect.

Assumption of Risk Replaced with Comparative Negligence Laws

If a party expressly or primarily accepts the risk associated with an activity, the law prohibits the injured party from recovering damages. Nonetheless, when the assumption of risk is implicit, courts frequently apply a comparative fault standard to divide debts.

The state of New York has enacted comparative fault laws that allow accident victims to collect compensation for injuries even if they are partially responsible for the accident. Under a standard of pure comparative fault, the victim could be primarily responsible for the cause of the injury and still recover damages.

The amount of compensation is reduced by the victim’s proportion of fault for causing the injury.

Many Factors Impact a Case Involving Assumption of Risk

Do not assume that you are precluded from recovering damages because you assumed the risk associated with an activity. Multiple legal theories and statutes may be applicable to your case.

Examples include:

  • Negligence
  • Absolute liability
  • Contributing error
  • Implied risk assumption
  • Expressed risk assumption

You may be entitled to compensation for damages if the other party was negligent, even if you were aware of the risks involved.

Consult with an experienced personal injury attorney before you give up the fight for compensation or accept a low settlement offer.

Contact Our Personal Injury Law Firm

Contact Abrams Law Group for a free consultation if you’ve been hurt in an accident and require legal assistance.

Abrams Law Group
104-70 Queens Boulevard, Suite 502
Forest Hills, NY 11375
(718) 997-9797

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