Posted in Personal Injury on August 31, 2020
No one expects that they will sustain an injury, but the reality is that injuries often occur due to the careless or negligent actions of other people. When this happens, victims may be able to recover compensation through a personal injury lawsuit. However, the concept of “assumption of risk” could prevent an injury victim from recovering compensation in a personal injury lawsuit or through an insurance settlement. Here, our personal injury attorneys want to discuss the concept of assumption of risk and how it could affect your personal injury case.
Understanding the Various Forms of Assumption of Risk
“Assumption of risk” is a legal doctrine that could prevent a person from recovering compensation after sustaining an injury. The idea behind this doctrine is that a plaintiff (the injury victim) cannot hold the defendant (the alleged negligent party) responsible for the injury if the plaintiff knowingly exposed themselves to the possibility of sustaining an injury.
Express Assumption of Risk
“Express assumption of risk” could be applied when the plaintiff has acknowledged they are aware of the risks involved in the activity they are about to complete. Typically, this acknowledgment involves some form of a written contract, commonly referred to as a waiver of liability. This waiver will be signed before participating in a dangerous activity.
An express assumption of risk does not always mean that a plaintiff will not be able to recover compensation. In these cases, a plaintiff could argue that they were injured because the defendant acted grossly negligent or intentionally in a way that caused the injury. Express assumption of risk will not absolve the defendant if that is the case.
Implied Assumption of Risk
“Implied assumption of risk” could apply when, though there is no express assumption of risk, the plaintiff knew that there would be a risk involved in the activity that caused them harm. For example, courts have long held that a plaintiff participating in various types of “pick-up” sports games (such as those at a local basketball court or field) are taking an implied assumption of risk because they know that they could be injured by participating.
Will Comparative Negligence Matter in these Cases?
California operates under a pure comparative negligence system, which means that defendants can recover compensation even if they are partially responsible for their injuries. Often, both parties in an injury case are found to have contributed in one way or another. In California, a plaintiff can recover compensation even if they are up to 99% responsible for the incident. However, the compensation they receive will be reduced based on their percentage of fault for the incident. For example, if a plaintiff is awarded $10,000 in a personal injury case, but it is determined that they were 20% responsible for the incident, then they would only recover $8,000 in total compensation.
Again, it will still be important to examine whether or not there was an express or implied assumption of risk in the case. If a plaintiff is found to have legally assumed risk, their ability to recover compensation could be extremely limited. To learn more about your legal options, contact an attorney in your area.