What is an Assumption of Risk?

Dangerous activities are worth the risk to some people. Unfortunately, accepting or assuming certain foreseeable risks can take away your chance to pursue recovery should an accident occur. In legal terms, “assumption of risk” typically refers to a person’s intentional willingness to participate in an activity that could be dangerous, such as skydiving or going on a roller coaster. It can also refer to a patient’s agreement to undergo risky surgery.

Here’s what you need to know about the assumption of risk if you’re the victim of a recent accident in Houston:

The Assumption of Risk as a Defense

In any personal injury claim, it is up to the plaintiff (injured party) to prove the defendant’s (party being sued) negligence in causing the accident. The plaintiff must show that the defendant owed him or her a duty of care, acted outside of this duty, and caused the injury. As the name implies, the defendant has a chance to defend himself or herself against the plaintiff’s allegations. In accidents involving a foreseeably dangerous activity, the assumption of risk is a common defense strategy.

The legal defense of assumption of risk is an affirmative one that means the activity in question came within foreseeable or innate risks. What qualifies as a “foreseeable” risk depends on the situation. In general, something is foreseeable if a reasonable and prudent person could have predicted it would happen. A foreseeable risk of BMX biking, for example, is crashing the bike and suffering an injury. It often takes an expert witness to testify on the foreseeability of risk during a personal injury claim.

It is possible to combat the assumption of risk defense if the plaintiff can show that a reasonable person could not have foreseen the type of risk that caused injury. The plaintiff might have voluntarily agreed to known dangers of the activity, but did not sign up for injuries that result from unpredictable dangers or hazards that stem from negligence. These might include loose animals, property hazards, defective products, reckless people, improper maintenance, and other dangers.

For instance, a BMX biker might have assumed the risk of losing control of the bike and crashing, but he or she did not assume the risk of the property owner failing to notice an exposed piece of rebar on the tracks that caused the serious injury. In this example, the assumption of risk defense would likely not hold up if the injuries would not have occurred were it not for the piece of rebar that the property owner knew or should have known about.

What If You Sign a Waiver of Consent?

Many companies or individuals that offer risky activities make participants sign waivers of consent before engaging in the activity. In many cases, signing a waiver is proof of the plaintiff’s assumption of risk, and can prevent the plaintiff from taking legal action against the company in the event of an injury. However, this is not always the rule. Signing a waiver does not automatically mean you can’t sue. If the defendant was negligent or reckless in some way that contributed to your injuries, a waiver of consent will not protect the defendant from liability. Ask a Houston injury lawyer if your claim has merit based on the facts of your accident.

Dangerous activities are worth the risk to some people. Unfortunately, accepting or assuming certain foreseeable risks can take away your chance to pursue recovery should an accident occur. In legal terms, “assumption of risk” typically refers to a person’s intentional willingness to participate in an activity that could be dangerous, such as skydiving or going on a roller coaster. It can also refer to a patient’s agreement to undergo risky surgery. Here’s what you need to know about assumption of risk if you’re the victim of a recent accident in Houston.