When you file a personal injury claim in Nebraska to pursue financial compensation from the person or party that caused your accident, you may run into one or more defenses. One defense strategy is called the assumption of risk. This defense claims that you were aware of the potential risk of injury associated with an activity but went through with it anyway – and that the defendant should therefore not be held liable for your injuries.
What Does Assumption of Risk Mean?
Certain sports, events and activities are known to be dangerous or hold a certain level of risk by their very nature. Mountain climbing, rappelling, skydiving and whitewater rafting are examples of activities with injury risks that are obvious to the average person. Agreeing to participate in these activities generally means that an individual has knowingly and voluntarily exposed him or herself to a known risk of injury. This is referred to as an assumption of risk.
When Can the Assumption of Risk Defense Be Used?
The assumption of risk defense is often introduced in a personal injury case involving circumstances where the plaintiff knew or reasonably should have known of potential dangers to his or her health and safety but participated anyway. Risky activities and extreme sports are one example, as mentioned above. Another example is a premises liability case that involves signage posted at the property that warned visitors of potential dangers, such as toxic chemicals or a vicious dog.
There are other situations where an assumption of risk might not be as obvious. Joining a new gym, for example, may not make you think you are assuming a risk of injury. If you signed a waiver when joining, however, the gym may have proof that you assumed certain risks. This could impact your ability to hold the gym responsible if you do get injured. It is important to note, however, that the assumption of risk defense can only be used when certain circumstances exist.
For a defendant to use an assumption of risk defense successfully, he or she must demonstrate two key elements. The first is that the plaintiff had actual knowledge of the risk involved in the activity. The second is that the plaintiff voluntarily accepted or assumed this risk, either implicitly or expressly. If either of these elements cannot be proven, the assumption of risk defense will fail to protect the defendant from liability.
Can Assumption of Risk Always Bar a Plaintiff From Recovery?
No. If you or your lawyer can prove that you did not have actual knowledge of the risk that caused your injury, this defense will not bar you from making a financial recovery. If you signed a liability waiver before participating in a dangerous activity, for example, but the waiver did not mention anything about the hazard that injured you, this could combat the assumption of risk defense.
Similarly, this defense will not work if you did not voluntarily assume the risk or hazard that injured you. In a case involving an injured minor, for example, a parent or legal guardian generally cannot accept an injury risk on behalf of a child. Without voluntarily accepting the risk – either expressly through an agreement or implied by words or conduct – the defendant will still owe a legal duty to the plaintiff. This can make the defendant liable for the plaintiff’s injuries.
Finally, there is an exception if a defendant is guilty of gross negligence, or a lack of care that reaches the level of a wanton or reckless disregard for the safety of others. While assumption of risk may defend against ordinary negligence, it is not a defense for gross negligence. The burden of proof when using the assumption of risk defense lies with the defendant, meaning it is the defendant’s responsibility to prove that the risk was obvious or apparent and that the plaintiff accepted this risk.
For more information about how the assumption of risk defense might impact your personal injury case in Omaha, contact Knowles Law Firm to request a free consultation.