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  • Writer's pictureRobert Schuerger II

Assumption of Risk in a Personal Injury Case | Informed Choices, Unforeseen Outcomes!

When an accident occurs due to another's negligence, the injured party may be able to pursue damages by filing a personal injury claim or lawsuit. However, depending on the facts surrounding the case, the at-fault party may use the assumption of risk defense to get out of liability.

Schuerger Shunnarah Trial Attorneys have helped the injured victims recover millions of dollars in damages. They have the legal knowledge and expertise to protect the victim's rights and hold the negligent parties responsible for their actions. They can explain intentional tort vs negligence in personal injury cases.

Those who have suffered injuries in Nashville, Tennessee, should contact an injury lawyer at Schuerger Shunnarah Trial Attorneys to discuss their case and learn more about their rights.

What Is Assumption of Risk in a Personal Injury Case?

What Is Assumption of Risk in a Personal Injury Case?

Under personal injury law, an assumption of risk is a legal doctrine that can affect the injured victim's rights to recover compensation. It states that any party knowingly and willingly placing themselves in danger or at risk of injury may be liable for the damages incurred.

An assumption of risk doctrine is also a legal defense that the defendant can use in a personal injury lawsuit to reduce or eliminate their liability. If they prove that the plaintiff knowingly exposed themselves to the risks, it can bar the injured party from obtaining compensation.

Types of Assumption of Risk in Personal Injury Law

Under personal injury law, there are four main types of assumption of risk, and these are as follows:

Primary Assumption of Risk

A primary assumption of risk occurs when the plaintiff is aware of the dangers of an activity and the risk of an injury and willingly (verbally or through action) accepts that risk. When that happens, and it leads to injuries, the injured party may be unable to recover compensation.

Ice skating, for example, is a sport that involves the risk of an injury. Any person voluntarily participating in such activities agrees to the risk and assumes responsibility for any injuries that may occur.

Secondary Assumption of Risk

A secondary assumption of risk occurs when the defendant has a duty of care towards the plaintiff and breaches it. However, when all of this is happening, the plaintiff is aware of the risks caused by the defendant's negligence and proceeds forward with that information despite the risk.

An employer, for example, hands over faulty equipment to its worker, and the worker, knowing that the equipment is defective, proceeds to use it carefully to get the job done. In such a situation, the worker accepts the risk and may be responsible if they suffer any injuries.

Implied Assumption of Risk

An implied assumption of risk occurs when the plaintiff accepts the dangers of an activity or assumes the risk of injury through their conduct. When a high school student joins a football team, for example, they are ready to play a game knowing the risks involved (broken bones, concussions, and other types of sports injuries).

Express Assumption of Risk

An express assumption of risk takes place when the plaintiff, through a verbal or written agreement, agrees to the risks involved, which absolves the defendant from liability.

When an individual decides to go sky diving, for example, they sign a liability waiver form that states that the person understands the risks of the activity. This bars them from pursuing a personal injury claim or lawsuit against the other party in the event of any injuries.

How Does the Assumption of Risk Work?

There are certain activities that are inherently dangerous, such as skydiving and rock climbing. When an individual participates in these types of activities, they knowingly and willingly expose themselves to the risk of injuries, making it nearly impossible for them to hold the other party liable for their injuries.

It is essential to understand that the assumption of risk only applies to known risks. If an individual suffers injuries due to the dangers they were unaware of, they may be able to pursue a personal injury claim.

Below is an illustration of how this legal doctrine works:

Steven decides to go rock climbing on a Saturday evening. He understands the risks involved and proceeds to climb higher. Unfortunately, a loose tile causes him to lose balance and fall to the ground, resulting in a hip fracture and damaged ribs.

In the above example, although Steven is aware of the risks of rock climbing, he did not assume the risk of injuries from a loose tile. He may be able to pursue a personal injury claim to recover the damages incurred.

What Does Assumption of Risk Mean in Personal Injury Claims?

An assumption of risk is an affirmative defense that the defendant may use to reduce or eliminate their liability. When pursuing a personal injury claim or lawsuit, the injured party must prove the following elements:

  • The defendant owed them a duty of care;

  • The defendant acted negligently and breached that duty;

  • The plaintiff suffered injuries due to the defendant's negligence; and

  • The plaintiff incurred damages due to their injuries.

Even if the injured party proves the critical elements of a personal injury claim, they may still be unable to recover compensation if the defendant successfully uses the assumption of risk defense.

In such situations, there are certain factors that can affect the plaintiff's right to obtain compensatory damages, and these include the following:

  • Whether the plaintiff assumed that particular risk of injury;

  • Was it an implied or express assumption of risk;

  • The state laws on the matter; and

  • Whether the defendant played a significant role in causing the plaintiff's injuries.

Is Comparative Negligence the Same as Assumption of Risk?

Is Comparative Negligence the Same as Assumption of Risk?

Assumption of risk (implied), in many states, is replaced with comparative negligence. Under the comparative negligence rules, the defendant argues that the plaintiff is partially or fully responsible for their injuries.

Tennessee follows the modified comparative negligence system. The jury may conclude that the plaintiff was 40% responsible for their injuries while the defendant was 60% liable for the damages caused. Under the state rules, the defendant must pay the plaintiff 60% of the damages.

It's important to note that the modified comparative negligence rules bar the plaintiffs from making any financial recoveries if they were more than 50% liable for their injuries. Schuerger Shunnarah Trial Attorneys also has information on the burden of proof in a personal injury case.

Schuerger Shunnarah Trial Attorneys Can Help the Injured Victims Understand Modified Comparative Negligence!

If an individual agrees to the risk of injury in contact sports or any other activity, they may still have a chance of recovering monetary damages. However, under the modified comparative negligence rules, it can be challenging to pursue compensation without legal representation.

Schuerger Shunnarah Trial Attorneys can help assess the facts surrounding the case, determine whether an assumption of risk exists, and gather the necessary evidence to build a strong personal injury claim. Those who have suffered injuries in Nashville, Tennessee, should call to schedule a free consultation and learn more about their legal options.


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