Every day people get involved in different incidences that could result in adverse outcomes for others. In such instances, someone has to take responsibility and assume the risk. So, what is the assumption of risk?
Assumption of risk is a legal doctrine of tortious liability. It involves a plaintiff giving consent to a risky action and being aware of the inherent dangers.
A plaintiff’s action is willful, deliberate, and puts others in harm.
Thus, the plaintiff’s actions acquit the defendant from any form of liability or implications. The court can only agree that the plaintiff was aware of the implications and inherent risks. Such agreement depends on the facts or evidence presented before the court against the plaintiff. Such facts must have all evidence of reasonability to become admissible by the court.
What is the assumption of risk?
The Assumption of Risk doctrine is also known as volenti non fit injuria. It is an action willingly taken by a plaintiff that consequently relieves the defendant of liabilities. It becomes tenable based on the risky action taken or about to be taken by a plaintiff.
Assumption of risk is a popular law doctrine advantageous to the defendant. Although, until recently, it worked in affirmative defense and was only made available to the defendants. For example, in California State, part of it has been replaced with contributory negligence for both parties.
So, what is the assumption of risk:
- A plaintiff consents that he is fully aware of the consequences of the defendant’s actions.
- A plaintiff fully knows that the defendant owes him no duty of care. Still, the plaintiff accepts to take whatever risk is involved in the issue—for example, a person riding a faulty car knowing of an impending accident. In law, you could term such action as ‘contributory negligence.’
However, there are exceptions to the affirmative defense like:
Principle of strict liability
It states that with or without consent, a defendant is liable for his conduct. Thus, the defendant must remedy the situation.
Product liability occurs when a consumer suffers injuries from a manufacturer’s products.
The difference is that strict liability requires proof of all elements of duty of care. It also deals with proof of the breach of duty of care, causation, and damages. On the other hand, product liability requires only proof of negligence for validity. Trial lawyers use personal injury case management software to manage product liablity cases
- The plaintiff will not assume the risk if the defendant’s action violates a statute or law.
What is assumed risk law?
Any activity that bears some semblance of unsafety also carries some assumed risk. Therefore, under the federal rules of civil procedure, the assumed risk law is an affirmative defense.
Thus, the defendant in a negligent action must prove the plaintiff’s knowledge of a dangerous activity. Further, the evidence must show that the plaintiff willingly exposed himself and others to danger.
The following facts require prooving before the honorable court if the doctrine must succeed:
- That the plaintiff was fully aware of the associated risks involved before consenting.
- The plaintiff expressly or implicitly agreed (verbally or written) to be engaged in the risky activity.
- From a reasonable man’s point of view, the plaintiff’s injury or loss was predictable.
Therefore, the plaintiff cannot sue for damages if liable based on injury sustained in the cause of action.
What is the voluntary assumption of risk?
In the voluntary assumption of risk, a plaintiff must voluntarily consent to the defendant. But it is for the court to bar them from damage judiciously. That is, the recovery of injury suffered in the cause of action.
Here are some actions that are not voluntary:
- Suppose the plaintiff gets some assurance of safety, protection, or a remedy. If things finally go south, the plaintiff will not assume the risk of injury. They only assume the risk when the assurance given isn’t sufficiently reasonable.
- Suppose the plaintiff acted under duress or fear caused by the defendant’s act. Then, by law, the defendant owes the plaintiff a legal duty of care not to be easily dismissed.
What is the assumption of risk examples?
Some assumption of risk examples include:
Express agreement assumption of risk
It is an agreement between both parties to acquit the defendant of any obligation. It eliminates any duty to care for the plaintiff. And that includes all liabilities that can amount to tortuous negligence.
An express agreement can only be valid if the plaintiff comprehends its terms. If not understood, it is not binding on the involved parties because of a lack of mutual consent.
Implied acceptance of assumed risk
It is consent implied by the conduct of the plaintiff during the period the event took place. Here, the bases are consensual and not contractual.
Agreements are not expressed in any form but implied by mannerisms and actions. For example, boarding a bus without steering will fall under implied consent. However, the plaintiff will not assume any risk without knowledge.
What tools do lawyers in defense of the assumption of risk use?
Sometimes, personal injuries may result from cases involving the assumption of risk. So, rather than carry a truckload of files to court, a lawyer can depend on technological tools.
Therefore, at CloudLex, we have a well-developed, personal management system. A personal injury lawyer can leverage seamless legal document management software, and access records via their tablets, PC, or phones.
Additionally, trial lawyers use Legal calendaring software to manage events related to cases arising out of assumption of risk.
CloudLex provides an intuitive, innovative and convenient way to access knowledge faster.
Now, you know what the assumption of risk for personal injury is!
Request a demo of the CloudLex to learn how it can help you build, manage, and grow personal injury practice.