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  • Writer's pictureRobert Schuerger

What Is Assumption of Risk in a Personal Injury Case

After being injured by a negligent part, you may wish to file a personal injury lawsuit against the said party as you aim to recover compensation for whatever damages you may have suffered in the process. Personal injury law allows for a defense and one of those that may be used is that of assumption of risk.

Put simply, this is the principle that you would have knowingly exposed yourself to whatever circumstances led to the injuries and other damages that have been suffered. Should such a defense be successful, it means not being able to recover some or any compensation at all for the matter.

How Does the Assumption of Risk Equation Work?

How Does the Assumption of Risk Equation Work?

While legal doctrine allows for personal injury lawsuits to be filed by those who have suffered at the hands of the negligence of others, the reality is that some activities are inherently dangerous. For example, if you are to go to an ice skating rink and take part, you run the risk of slipping and falling, which can lead to an injury.

If any activity is known to be reasonably dangerous and you should take part, then you are intentional and purposeful in taking part. You can start to see why this risk defense is such a good one under the right circumstances since it now shifts the perspective from being one simply about a breach of duty of care on the party of the defendant, which would constitute negligence under normal circumstances.

Bear in mind though that assumption of risk occurs only when the dangers are known and are foreseeable. Sure, a rock climber should know that there is a risk of falling when participating in such an activity. However, if the fall comes from a broken tile floor on the way up to the climbing wall, then no one can say that the plaintiff assumed the risk for such an event.

Implied Assumption of Risk Vs. Express Assumption of Risk

The assumption of risk doctrine applies in one of two ways. There is the implied assumption of risk, in which case, there was no formal contract signing in effect. However, it should be reasonably clear that there are certain risks inherent to whatever is being done and these have been accepted. It's simply a matter of knowing that something is risky and choosing to do it anyway.

On the other hand, there is what is known as an express assumption of risk. In this case, things are a bit more on the formal side of the fence. For example, you signed a waiver or a contract to indicate that you are accepting whatever kind of risk is involved. Dental extractions are a common example of this.

Especially if you're removing a wisdom tooth, there are several implications that you will need to be concerned with.

The dentist's office will typically require that you sign a waiver that you understand and accept these potential occurrences, which would free it from any kind of personal injury case attempt in the future.

Note, however, that the signing of a contract or waiver is not a barrier to you filing any kind of personal injury claim at all. The risk assumption is limited to what is reasonably expected with the activity and nothing more.

How Is Assumption of Risk Involved in Personal Injury Claims?

As indicated before, the assumption of risk means that the narrative of the case is shifted from one that has to do purely with the defendant's negligence in the matter. Under normal circumstances, personal injury lawyers will work with you to prove the following:

  1. The negligent party owed you a duty of care, meaning they were meant to act responsibly and in a way to prevent injury

  2. There was a failure on the part of the defendant to act within the parameters of this duty

  3. Harm was caused, which has necessitated your attempt to recover compensation

  4. The negligent actions of the defendant directly led to the harm that you have suffered

Even in cases where this defense is all but successful, the assumption of risk defense may still be introduced. It's always going to boil down to if it were reasonable to assume that a certain level of risk exists and the extent to which you still knowingly took part knowing the said risk.

As you can imagine, this can complicate things for someone trying to recover compensation, which is why the best thing to do is retain the services of a personal injury attorney in Dallas.

Comparative Negligence Considerations

Comparative negligence rules will typically apply in modern-day cases where a defendant wants to prove that the plaintiff is also liable for the outcome to some degree.

These rules will be a factor in situations where there is fault on the end of both parties. Therefore, instead of an attempt to say that you are simply at fault for knowing something was risky and still taking part, the narrative is that you were also partially negligent in ensuring your safety.

You can still recover compensation under such circumstances. However, it will be based on the extent to which you are responsible, which is evaluated as a percentage. Bear in mind that in Texas, there will be no compensation if your fault percentage is 50% or more.

Liability Waiver and Insurance Company Considerations

Liability Waiver and Insurance Company Considerations

As indicated before, there may be cases in which you signed liability waivers before you participated in whatever activity led to the incident. As you can imagine, these can turn around to be powerful tools in the arsenal of defendants who want to prove that you're not as innocent in the scenario as you want to appear. Contact Schuerger Shunnarah Trial Attorneys for more information on the burden of proof in a personal injury case.

However, a good personal injury lawyer knows that not all these are enforceable, especially in cases where they are broad and ambiguous. Similarly, they do not offer protection from intentional or reckless behavior. They can help explain what is duty of care in personal injury law.

Get Legal Assistance from an Experienced Personal Injury Lawyer Today!

Assumption of risk or comparative negligence rules can both be problematic in a bid to recover compensation for losses suffered from an accident. Thankfully, there's no need to navigate this legal landscape alone.

Schedule a free consultation with an expert Dallas personal injury lawyer today by calling Schuerger Shunnarah Trial Attorneys!


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