Brian White | August 24, 2021 | Personal Injury
When you’re injured, you may be able to pursue compensation by filing a claim to collect from the insurance of a negligent party. However, you don’t always have grounds to file a claim or lawsuit simply because you were injured. Many factors influence whether you can recover compensation.
For example, if you were injured while willingly participating in an activity that you knew involved a degree of risk, you might not be able to justify filing a claim. This is the basis of the legal concept known as “assumption of risk.” Determining whether you would be considered to have assumed the risk involved in an activity is easier if you review your case with a personal injury lawyer.
Texas’ Assumption of Risk Laws
There’s no official assumption of risk law that applies in every state. In Texas, the assumption of risk defense was once considered a valid or affirmative defense in tort cases. That has since changed somewhat.
The assumption of risk defense no longer makes it as easy as it once was for defendants to avoid compensating plaintiffs. The assumption of risk defense may still technically be used, but a defendant must prove a plaintiff gave clear written or oral consent to participate in a risky activity that resulted in injury.
This is different from the manner in which the assumption of risk defense could have potentially been applied in the past. It used to be easier to use the “implied assumption of risk” defense.
This meant that even if there was no clear agreement to participate in a risky activity on the part of the plaintiff, their decision to participate in a risky activity implies they assumed the risk.
When Might Assumption of Risk be a Valid Defense to a Lawsuit?
The following are examples of instances in which the assumption of risk defense may theoretically be used:
- A plaintiff files a medical malpractice lawsuit after sustaining injuries as a result of a surgical procedure. However, they may be unable to recover compensation if it can be shown that they were aware of the risks involved in the procedure and consented to it.
- Someone is injured when they’re willingly using a product that has the potential to cause harm by its nature (such as a chainsaw). Their injury was not the result of a defect or a risk factor they were unaware of. This may prevent them from filing a product liability claim.
- A football player is injured on the field. They knew this was a possibility when they decided to play football. Thus, they can’t sue the team or league. However, they may be able to recover compensation if there is no evidence that they expressly consented to playing football.
According to the Supreme Court of Texas, “The defense of express assumption of the risk is available only to one who proves that the plaintiff gave express oral or written consent before encountering the injury-causing risk.
Nothing short of that amounts to express assumption of the risk. In no way can mere participation in any risky activity, sports-related or other, be characterized as express assumption of the risk.”
Can I Still Get Money If I Assumed a Risk and Still Got Hurt?
Be aware that it’s possible to recover compensation after being injured when participating in a risky activity even if you consented to do so. Again, many factors influence whether you may seek compensation in these circumstances. The exact reason you were injured is one such factor.
For example, perhaps you agreed to go on a guided scuba dive during which you were injured. You might still be able to recover compensation despite having clearly agreed to go on the dive. Perhaps you were injured due to an equipment malfunction. That’s not a risk you assumed.
Such examples highlight the complexity of this topic. It can often be difficult to clearly determine whether the assumption of risk defense could prevent you from recovering compensation. If you even vaguely suspect you may have a right to compensation, review your case with a personal injury lawyer. An expert can help you more clearly understand if you should file a claim or lawsuit.
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