What Plaintiffs Should Know About Assumption of the Risk
It is a well-settled principle of personal injury law that a person who acts negligently in such a way as to cause injury to another is liable for any damages the other person suffers. But what about situations in which the injured person had voluntarily exposed themself to the risk — for example, by taking a skydiving class? Is it really fair to hold defendants liable for injuries where the plaintiff knew what they were getting into? The answer is no, and that’s why plaintiffs in personal injury actions should be aware of the personal injury doctrine, which our Tifton injury lawyers explain here.
What Is Assumption of the Risk?
Assumption of the risk is a defense to personal injury liability. When raising the defense, the defendant essentially argues that, even though they might have negligently caused the plaintiff’s injury, the plaintiff knew of, appreciated, and consented to the risks involved with the activity in question. Therefore, the defendant should not be liable for the plaintiff’s damages.
To succeed on a defense of assumption of the risk, the defendant generally must show:
- The plaintiff knew of the danger
- The plaintiff fully appreciated the risk
- The plaintiff voluntarily exposed themself to the risk
See Roberts v. King, 102 Ga. App. 518 (Ga. Ct. App. 1960).
The assumption of the risk doctrine is an affirmative defense, which means that the burden is on the defendant to prove that the plaintiff assumed the risk. The plaintiff is not required to show that they didn’t assume the risk.
Common Scenarios Where Assumption of the Risk Arises
The assumption of the risk defense often arises in cases where the plaintiff was involved in an activity that was inherently risky, such as participating in school and sports events, taking an outing involving bicycles or motorcycles, or attending a theme park or fun fair. It can also arise in premises liability cases in which the property at issue was outfitted with “enter at your own risk” or “no trespassing” signs. It arises less often in motor vehicle accident cases, although it is not unheard of.
The Limits of Assumption of the Risk
Because assumption of the risk can significantly impair an injured plaintiff’s ability to recover, there are certain limits on the application of the doctrine, including in the following instances:
- The plaintiff must have actual knowledge of the risks involved in the activity; “should have known” knowledge is not enough
- The plaintiff’s consent must be voluntary and informed; it cannot be obtained through coercion or fraud
- Children generally cannot assume risks, although the age and sophistication of the child are factors to consider
Discuss Your Case With a Tifton Injury Lawyer
Cases involving the assumption of the risk defense can be more complex than the average personal injury action because they require the plaintiff to rebut the defendant’s arguments that the plaintiff assumed the risk. Therefore, if you think assumption of the risk might be an issue in your situation, you should speak to an experienced attorney. To get started, please contact a Tifton injury lawyer at the Hudson Injury Firm by calling 229-396-5848 or using our online form.
