Dangerous Activities and Assumption of Risk

If you’ve been injured during a dangerous activity or while playing sports, who is responsible? Understanding the assumption of risk doctrine can help you decide.

People who cause your injuries should pay for your losses after your injuries. But sometimes, you might be injured because you made a bad choice.

Apart from situations in which you are injured because of your own negligence, sometimes you know that you’re putting yourself in a risky situation.

If you are injured after engaging in an activity with a known risk, who is to blame? More importantly, who has to pay for your medical bills if you get hurt? Can you ever win personal injury lawsuits when you undertake dangerous activities?

As with many other topics in the law, the answer is not always clear. The assumption of risk doctrine states that, as a general rule, a personal injury defendant (the person or company you are suing for your injury) is not responsible for injuries you sustain when you voluntarily expose yourself to a dangerous situation.

This is not to say, though, that just because you are playing a dangerous sport, no one can ever be liable for hurting you.

This article will examine the doctrine of assumption of risk. Specifically, we will look at how the legal arguments work and when assumption of risk can bar (meaning prevent) your recovery of damages. As with contributory and comparative negligence,  the facts of your specific situation will determine your eligibility to collect injury compensation.

What Is the Assumption of Risk Doctrine?

Man hiking on the side of a mountain

Assumption of risk is an affirmative defense to a personal injury claim. It means that the defendant is arguing that they can’t be responsible for your injury because you were engaging in a dangerous or risky kind of activity.

The argument is, if you knew of the danger going in and you did it anyway, then you only have yourself to blame when you get hurt.

In an affirmative defense argument, even if the facts that are alleged by the injured person are true, they still can’t win the lawsuit. An affirmative defense is based on one or more points of law, like contributory negligence, self-defense or (in certain circumstances) defense of property.

A popular example for assumption of risk is skydiving. Almost everyone understands the risks of skydiving. If you jump out of a flying airplane, you will fall to your death unless you prepare well and take some very specific actions after you have jumped, like using your parachute at the right time.

Another, less dramatic example would be going to a wild animal park. If you are driving through a park with large animals, like elephants, there is always a risk that one of those animals could chase you or injure you while you are in the park.

So, did you assume the risk for your injury just by showing up? The answer depends on several factual and legal points. Specifically, did you expressly say you were releasing the other party from liability before you began? Also, is the injury you received one that logically arises from the dangerous activity?

Express vs. Implied Assumption of Risk

Man signing a General Release of Liability form

The first pertinent factual question in an assumption of risk defense is whether there was an express or implied assumption of risk. In other words, did you say that you were willing to take the risk before you started the activity?

Express Assumption of Risk

Express assumption of risk means that you said, wrote or otherwise clearly expressed that you knew the risks associated with the activity in which you were about to participate. The most common method for an express assumption of risk is a written agreement known as a waiver or release of liability.

Waivers like these will detail the activity and discuss particular risks and examples of injuries that could arise from activity. In many cases, if you are engaging in an activity with any amount of known risk, the party with whom you are doing business will require you to sign a waiver.

Just because waiver language exists somewhere, though, does not mean the defendant is off the hook. Waivers must be knowing and voluntary. In other words, it has to be reasonably obvious that you are signing a waiver.

Very few states allow a parent to waive a child’s rights, or make an assumption of risk on behalf of a child. Sport and activity waivers signed by parents can’t automatically be used to deny compensation to an injured child.

Also, some businesses may simply display signs stating that you assume the risk or that they have no liability for injuries. In most cases, signs like these do not legally constitute an express assumption of risk.

Implied Assumption of Risk

A defense based on implied assumption of risk is more difficult to win, but it can still be done. What the defendant has to show here is that you acted in a way that shows you knew of the risk but still went ahead anyway.

For example, let’s again consider skydiving. Though any skydiving instructor in real life would ask you to sign a waiver, assume for a moment they didn’t. Then assume that you jump out of the airplane, panic and release your parachute at the wrong time. You survive but break both of your legs.

You might think that because you didn’t sign a waiver, you’ll win a lawsuit. That’s unlikely because you still jumped out of a flying airplane toward the ground. You cannot reasonably argue that you didn’t understand the risks of jumping out of a flying airplane. Therefore, your conduct (i.e., jumping) will likely amount to an implied assumption of risk.

Primary vs. Secondary Assumption of Risk

Football player holding his injured knee

The second major question in an assumption of risk defense is whether the injury you suffered is one that would logically follow from the activity.

Again, assume you are skydiving and break your legs in a fall. That is a serious injury, but it is an inherent risk based on the nature of the activity. In this case,  you have made a primary assumption of risk of injury.

This is opposed to a secondary assumption of the risk, which is for an injury that was not caused by a known danger. Instead, the injury in a secondary case would be caused by the defendant’s behavior.

Why It Makes a Difference

If a court or jury finds that you have made a primary assumption of the risk, you are usually prevented from winning your personal injury case. This means that you cannot get a judgment against the defendant, whether or not you acted reasonably, because you knew and accepted the risk beforehand. (In other words, you jumped out of the plane knowing that you could hurt yourself or die.)

If you have made a secondary assumption, though, the analysis changes. Then, you can recover against the defendant, but only to the extent that they breached a legal duty of care and you were not hurt by your own negligence.

For example, if you are playing football and the coach drives their car into the middle of the field, running you over, you can likely recover against the coach because no one plays football thinking they will be injured by a car driving through the players on the field.

Take Responsibility and Hold Others Responsible

In any personal injury case, you are responsible for your own behavior. If you participate in a dangerous activity and get hurt in a way that was predictable and common, you will likely be out of luck. And if you signed a waiver listing all the ways you can get hurt and then hurt yourself in one of those ways, you will probably lose a lawsuit.

Waivers and assumption of risk, however, are not magic shields. Defendants are still responsible for how they behave. If they act intentionally to hurt you, or they are grossly negligent, they need to pay for your damages.

Keep in mind that waivers signed by a parent or guardian might not be a valid defense in a child injury case.

If you or your child has been harmed in such a situation, contact a personal injury lawyer in your state for a free consultation.

Matthew Carter, Esq. has been a licensed attorney since 2004. He’s admitted to practice law in California and Nevada, where he was awarded the Martindale.com rating of AV – Preeminent. Matthew has successfully handled a variety of personal injury and wrongful death cases, as well as trials, appeals, and evidentiary hearings throughout state and federal... Read More >>

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