What Is the Assumption of Risk Doctrine?
WLF Personal Injury Attorneys Answer
Assumption of risk is a defense that the defendant can use to deny or reduce the plaintiff’s right to recovery by asserting that the plaintiff had prior knowledge and understanding of the risks associated with the activity that he was involved in at the time his injury or loss. The assumption of risk doctrine is also known by its Latin name volenti non fit injuria. Big businesses often use this defense to avoid paying damages of large amounts. But it doesn’t mean you can’t fight. Talk to skilled and experienced personal injury attorneys to find out if you have a strong case.
Situations that Give Rise to Assumption of Risk
Situations that lend themselves to the assumption of risk doctrine are classified into the following three broad categories:
- First situation: In the first situation, the plaintiff had given his consent in advance to relieve the defendant of an obligation towards him arising from a known risk. The consequence of this is that the defendant cannot be held liable for negligence. This means that if the plaintiff had prior knowledge of the risks and had consented to take a chance of injury, then the defendant wins the case straightway. For example, a plaintiff was found to have consented to be driven in car knowing that its steering system was defective.
- Second situation: In the second type of situation, the plaintiff had voluntarily entered into a relationship with the defendant, with the full knowledge that the defendant would not safeguard him against the risks. In this case, the plaintiff can be assumed to have tacitly or implicitly consented to the negligence. For example, a plaintiff was found to have ridden in a car with the knowledge that the steering was defective.
- Third situations: In the third type of situation, the plaintiff had continued to be involved in an activity being fully aware of the risks previously created by the negligence of the defendant or had continued to be involved in the activity even after the risk had been detected. If the plaintiff had voluntarily involved himself in the activity, then he or she is deemed to have assumed the risks.
Express vs. Implied Assumption of Risk
- Express assumption of risk: In the first situation discussed above, the assumption of risk is known as primary or express assumption of risk since the plaintiff had given his consent to be involved in the activity by signing an agreement or by his conduct. It involves a written contract or document, in which an individual acknowledges the associated risks and consents to assume those risks. For example, the plaintiff had entered into a written agreement to work in a steel plant being fully aware of the risks involved.
- Implied assumption of risk: In the second and third situations discussed above, the assumption of risk is known as implied assumption of risk since there was no written contract or agreement, but the individual was aware of the risks before being involved the activity. It implies that he For example, the plaintiff had tacitly or implicitly agreed to assume the risk. For example, the plaintiff had volunteered to play hockey being fully aware of the risks.
Assumption of Risk as an Affirmative Defense
Under the rules of Civil Procedure, assumption of risk is an affirmative defense, in which the defendant in a negligence case must plead and prove his or her innocence. Civil Procedures are the methods, practices and procedures used in civil cases. Affirmative defense means a new fact or a set of facts that can be used to defeat a claim even if the facts that have been present to support the claim are true.
Affirmative defenses allow a defendant in a criminal or civil lawsuit to justify his actions or to limit his liability. The defendant admits to the allegations made by the plaintiff, but provides explanations and evidences to justify his conduct or action. If you were injured or have suffered damages while being involved in any activity knowing the risks associated with it, talk to reputed personal injury attorneys to explore your options.