What Is Assumption of Risk?

When you take part in a sport, recreational activity, or other potentially dangerous activity, you may be considered to have accepted certain risks that come with it. In some cases, that can limit or even prevent an injury claim. But there is a difference between accepting a risk you knew was part of the activity and accepting responsibility for every injury someone else may cause. The details matter, as does the law where you file your case.

If you’ve been injured and have questions about your legal options, talk with a personal injury lawyer who can review your situation.

What Is Assumption of Risk?

Assumption of risk is a legal defense a defendant can raise to limit or prevent someone from recovering damages. When someone files a lawsuit, they argue that the defendant is responsible for their loss.

Typically, this stems from the defendant’s intentional or negligent act or failure to act. A defendant can respond by arguing that the injured plaintiff is partially or wholly responsible for their injuries because they assumed the risks that led to their injury or loss.

Assumption of risk doctrines fall into two categories:

1. Express: Occurs when an individual explicitly agrees to participate after being informed of the risks verbally or in writing. For example, participants must sign a liability waiver before taking part in contact sports.
2. Implied: Applies when a person’s actions show they knew of the danger before choosing to participate in the activity. For example, a person may assume the risk by choosing to participate in extreme sports.

Some jurisdictions also distinguish between primary and secondary assumption of risk. Primary implied assumption of risk is when the danger is a normal part of the activity, so the other person has no duty of care to protect the plaintiff. Secondary implied assumption of risk is when the other person owes a duty of care but breaks it, and the plaintiff still chooses to face the known danger.

There is also a difference between accepting the ordinary and inherent risks of an activity and risks created when someone else is negligent, reckless, or behaves wrongfully. A person playing baseball may accept the possibility of being hit by a ball. That does not automatically mean they accepted every unsafe condition or negligent act connected with the game.

When Does Assumption of Risk Apply?

The assumption of the risk defense is most commonly used in personal injury claims. An individual voluntarily participates in an activity and is then injured. Assumption of risk comes up because the activity has obvious or inherent dangers that the injured party knew about when they chose to participate.

When hearing an assumption of the risk argument, courts may consider whether the person knew of the risk, understood its nature, and voluntarily chose to participate. While each court and jurisdiction may vary, courts generally agree that awareness that something could go wrong is not the same as knowingly accepting the specific risk that caused the injury.

Courts have historically distinguished actual knowledge of the risk from merely arguing that a person could or should have discovered it.

Do You Have To Sign a Waiver To Assume the Risk?

You do not have to sign a waiver to assume the risk of an activity or situation. However, signing a release form is a part of express assumption of the risk. The written agreement may state that the participant understands certain risks and agrees to release the business, organization, or other party from liability under specified circumstances.

While signing a release can be impactful, it isn’t always required. Courts also consider whether the release is enforceable. The language, applicable state law, public policy, and type of activity involved are all relevant.

Simply signing a waiver doesn’t necessarily relieve the defendant of all liability. Whether a waiver can cover gross negligence depends on applicable state law, but a waiver generally cannot excuse intentional or reckless harm.

Whether a waiver covers an injury caused by equipment failure or a hidden hazard depends on the waiver’s language and applicable law, including rules about disclosure and public policy. Sometimes, the waiver seeks to avoid liability, but doing so runs counter to public policy. The court will still hold the defendant liable if the waiver’s terms violate state law or public safety rules.

How Much Can Assumption of Risk Affect an Injury Claim?

The impact of a successful assumption of risk defense on a personal injury lawsuit varies. Each state has its own laws defining how assumption of risk is handled.

In some situations, assumption of risk can prevent recovery for injuries resulting from risks the person knowingly and voluntarily accepted. In some jurisdictions, the doctrine may affect whether the defendant owed a legal duty regarding an activity’s inherent risk.

Many jurisdictions have merged or incorporated implied or secondary assumption of risk into comparative negligence principles. Instead of automatically eliminating the claim, courts may consider the injured person’s conduct when determining percentage of fault and damages. This means the outcome may involve reduced compensation rather than a complete bar.

What Risks Does Someone Actually Assume?

Participating in an activity does not mean accepting every possible dangerous condition. Assumption of risk generally focuses on the particular hazards a person knew about and voluntarily accepted. That may include inherent risks, meaning dangers that are part of the activity itself.

A football player may understand that tackles and physical contact are part of the game. That does not necessarily answer whether the player assumed the risk of conduct that went beyond the ordinary scope of the sport or an unsafe condition that was not apparent.

Other risks could raise additional questions. A hidden hazard, an unusual danger, or conduct that falls outside the ordinary nature of the activity may not be treated the same way by the court.

A football player could be injured because of something they did not know about or could not reasonably expect. The outcome can depend on the facts of the case and the law of the state where the injury occurred.

Can You Still Sue After Assuming a Risk?

Possibly, but it depends. Whether you can sue after assuming a risk depends largely on the risk you actually accepted. A court may distinguish between the ordinary dangers associated with an activity and a danger that was hidden, unexpected, or outside what a reasonable participant would anticipate.

Your knowledge of the specific risk can also matter. If you did not know about or understand the danger that caused your injury, assumption of risk may not apply in the same way.

The same is true when a waiver is signed. Depending on the applicable state law, questions may arise about whether the waiver clearly covered the conduct at issue or if it can even be enforced. States also differ in how they treat assumption of risk. Some incorporate it into comparative fault.

Why the Facts Matter in Assumption of Risk Cases

Each case is unique, so the facts matter. Personal injury cases often involve questions of both liability and damages. The facts developed during the case can affect whether assumption of risk becomes a viable defense. To determine how assumption of risk may affect a case, an attorney may consider:

• What activity the person was participating in
• What specific risk caused the injury
• What warnings were provided
• Whether the person signed a waiver and what the document says
• What the person knew before participating
• Whether the risk was inherent or unexpected
• What the defendant did or failed to do

Talk to a Personal Injury Attorney

Assumption of risk can play an important role in a personal injury case, but participating in a risky activity does not automatically mean you have no legal claim. A personal injury attorney can review your case and help you understand how assumption of risk may affect your right to compensation.

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