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Assumption of Risk in Personal Injury Lawsuits

Many everyday activities, from driving to shopping, involve inherent risks. Under the assumption of risk doctrine, individuals injured while participating in such activities may be precluded from filing a personal injury lawsuit, as they have implicitly accepted the associated risks. This legal concept contains subtleties that can vary depending on the circumstances.

However, even if an activity is considered risky, you might still be eligible to seek compensation for injuries sustained. At Ashenden & Associates, our experienced Sandy Springs and Atlanta, GA, personal injury lawyers are skilled in assessing the specifics of your case to determine potential legal recourse. We are committed to advocating on your behalf to secure justice and compensation from those at fault.

Call our law offices at 770-394-8909 to schedule a free initial case evaluation with a member of our team.

assumption of risk

What is the Assumption of Risk Defense?

The assumption of risk defense often surfaces in cases where someone gets injured due to someone else’s negligence while also participating in a dangerous activity. At its core, the assumption of risk is a legal doctrine, which states that an injured person who knowingly participated in a risky activity can be found partially or solely responsible for their own injury, even if they were injured due to another person’s negligence. 

In personal injury cases, there’s the plaintiff (victim) and the defendant (negligent party). In certain situations, the defendant may use the assumption of risk defense to argue that the plaintiff is either completely responsible, or at least partially responsible, for their own injuries.

Example of Risk Assumption

The assumption of risk defense frequently arises in auto accident lawsuits in Sandy Springs. Consider a scenario where a defendant runs a red light and collides with the plaintiff, resulting in injuries. If the plaintiff was distracted by adjusting the radio at the time of the accident, the defendant might argue that the plaintiff’s inattention contributed to the occurrence. Consequently, this could reduce the defendant’s liability, as the plaintiff’s actions are seen as partly responsible for the accident.

assumption of the risk personal injury

Express Assumption vs. Implied Assumption

The assumption of risk doctrine can be separated into two main variations: express assumption and implied assumption.

Express Assumption of Risk

Express assumption of risk occurs when someone willingly and explicitly agrees to participate in a dangerous activity, fully aware the particular risk exists. This agreement is often formalized through a written agreement like a waiver or release form that states the person’s involvement in the inherently dangerous activity is at their “own risk.”

In personal injury cases, the plaintiff assumed or acknowledged the specific risk or risks inherent to dangerous activities and voluntarily assumes responsibility for any injuries that may arise. 

One example of express assumption is signing a waiver before entering an amusement park. Roller coaster rides carry a certain level of inherent risk. By providing the park with express consent, the consumer cannot hold the park liable for any injury sustained on a roller coaster or other rides.

Implied Assumption of Risk

Implied assumption of risk applies when an individual engages in an activity or enters a situation where the inherent dangers are so obvious that they should have reasonably recognized and appreciated them, even without an explicit agreement or waiver. In these cases, the law assumes that the person should have exercised caution or refrained from participating altogether due to the apparent risks. 

One example of this is attending a baseball game or going rock climbing in rough terrain. Even though there isn’t a consent form or liability waiver, people choose to actively participate despite the inherent risks.

what is assumption of risk

Primary vs. Secondary Assumption of Risk

Assumption of risk can also be broken down further into primary and secondary assumption of risk.

Primary Assumption of Risk

Primary assumption of risk occurs when someone willingly participates in an activity where no one else is responsible for their well-being. As a result, the primary assumption of risk acts as a complete defense against any claims of negligence. The person who participated in the activity can’t blame anyone else for their injuries because they willingly engaged in the activity, knowing that the activity involved some form of risk.

Primary assumption of risk is often used in cases involving contact sports like football. A player who suffers from a traumatic brain injury as a result of playing football cannot sue their coach or another player because they willingly chose to play football and knowingly assumed the risk.

Secondary Assumption of Risk

In cases where the primary assumption of risk doesn’t fully apply, the secondary assumption of risk may come into play and limit the defendant’s liability. A secondary assumption of risk can be used when the plaintiff acted or participated in a risky activity or reckless conduct. Still, the defendant owes the injured plaintiff a certain amount of reasonable care protection from harm. The secondary assumption of risk recognizes that while the plaintiff knew and took on some assumption of the risk, they should not be expected to assume unreasonable or unforeseeable risks.

For example, let’s use the amusement park situation. Someone who visits an amusement park and signs a release form, which willingly recognizes that roller coaster rides carry some form of inherent risk. The secondary assumption of risk would protect the victim if they suffered from an unforeseeable injury, like breaking their arm as a result of a ride malfunction.

The amusement park still has a legal duty to protect consumers from accidents and malfunctions, so the secondary assumption of risk defense would only be a partial legal defense from complete liability. The park could still be held partially liable for the plaintiff’s injury in a personal injury lawsuit. 

What is Modified Comparative Fault?

Comparative negligence is a legal standard that helps determine the amount of liability a defendant may have in a given injury claim. Under the comparative negligence doctrine, the court assigns a percentage of fault to each party involved in the personal injury case, including the plaintiff and the defendant. This percentage of fault is used to help determine whether or not the victim is eligible for compensation and how much compensation they are entitled to in a given personal injury case. 

Georgia uses modified comparative fault, meaning the plaintiff may only recover compensation if they are less than 50% responsible for the accident. Anything more is a complete bar.

Additionally, the plaintiff’s recovery is reduced based on their percentage of fault. For example, if a plaintiff assumed 20% responsibility, the plaintiff’s recovery will be 80%.

assumption of liability

How Does Comparative Fault Relate to the Assumption of Risk?

Comparative fault is used to calculate the defendant’s percentage of liability, which can be crucial in cases where assumption of risk is involved. If the plaintiff participates in activities with known risk but is injured as a result of the defendant’s negligence, the defendant can still be held partially liable. 

Let’s go back to the car accident example. In a car accident where the defendant ran a red light, and the plaintiff was distracted by the radio, the defendant is primarily at fault, but the plaintiff’s distraction is also considered. Consequently, if the court assigns 15% of the fault to the plaintiff for their distraction, they would only be eligible to recover 85% of the damages incurred, such as medical costs and lost wages, under comparative negligence rules. 

How Can a Personal Injury Attorney Help Prove Negligence in an Assumption of Risk Case?

Assumption of risk cases can be very tricky to navigate. An experienced personal injury lawyer can help establish the four elements of negligence. These include:

  • Duty of care
  • Breach of duty
  • Causation
  • Damages

An attorney will be able to gather evidence and eyewitness testimonies to prove negligence in a given personal injury case. They will also be able to build a strong case against the defendant, even in cases involving the assumption of risk, ensuring that they are held responsible for their actions. 

Experienced Personal Injury Lawyer in Sandy Springs, GA

At Ashenden & Associates, P.C., we understand how complex personal injury claims can be, especially those involving the assumption of risk and comparative fault. Our experienced personal injury lawyers are here to provide the residents of Sandy Springs and the greater Atlanta area with the expert legal support and personal advocacy they need to receive a favorable outcome in their case.

Call us at 770-394-8909 or contact us online to schedule a free consultation with an attorney on our team.