Assumption of Risk in Personal Injury Claims (2024 Guide)
For adrenaline junkies, the more risky an activity is, the more inviting it is to them. Unfortunately, these activities sometimes result in accidents that can devastate the affected person’s life.
Unfortunately, you may not have a right to compensation when you suffer an injury under such circumstances because the doctrine of risk assumption may come into play.
This guide looks into the doctrine of assumption of risk and is an excellent read if you are pursuing a claim where assumed risk could come into play.
What Is the Assumption of Risk, and When Does It Apply
Assumption of risk is a legal doctrine applied in personal injury cases as a defense against liability in high-risk activities. A defendant can use this defense if they can prove that the victim knew and understood the risks involved in the activity but still chose to engage in it.
Assumption of risk applies only to foreseeable dangers. So, for example, every scuba diver is aware of decompression sickness that could result in paralysis or even death. When a person then chooses to engage in scuba diving and suffers decompression sickness or dies, the activity’s organizer may not have liability for the accident.
Assumption of Risk under California Law
California law divides the assumption of risk into three categories: primary, secondary, and implied. The primary assumption of risk occurs when an individual engages in an activity known to have inherent dangers.
Also, the risk must be so inherent to the activity that eliminating it would mean destroying the nature of the activity. For example, getting hit by a fly ball is an inherent risk in baseball. As such, a participant cannot claim compensation for injuries sustained after getting hit by the fly ball.
Secondary assumption of risk occurs in situations where a person assumes additional risks beyond what is inherent to the activity. Suppose a ride in an amusement park has loose bolts or faulty restraints, but an individual with full knowledge of the additional risks agrees to take it. In such a situation, they can be said to have assumed additional risks.
Exemptions for Assumption of Risk
“Assuming a risk doesn’t always mean you lose every right to compensation. For almost every rule in the book, there is an exemption,” says California personal injury lawyer Larry Eisenberg of Law Office of Eisenberg & Associates.
An example situation where the rule doesn’t apply is when the activity is illegal or violates safety regulations. Another situation where it may not apply is where the victim may not have complete information about the risks involved, for example, if the defendant misleads them.
When deciding a case involving the assumption of risk, the court focuses on the voluntary acceptance of the risk and whether or not the victim fully understands what they are getting into.
Comparative Negligence
In some cases, especially where a secondary assumption of risk applies, each party carries responsibility for their part in the accident. California is a pure comparative negligence state. As such, you can recover compensation as long as the defendant had a percentage of fault.
For example, if you are deemed to be 90 percent at fault and the defendant 10 percent, you can still recover compensation. But you can only get ten percent of the value of recoverable damages. This is where working with a lawyer becomes critical, as that can help ensure that the opposing side doesn’t take advantage of your ignorance of legal matters to oppress you.
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