Personal Injury Assumption of Risk: What Does It Mean?
In a personal injury case, the assumption of risk is a valid defense. The defendant asserts that the plaintiff knew there was a danger of harm and accepted liability for any mishaps that might occur. Another benefit of a successful assumption of risk claim is a complete abdication of liability in a personal injury case.
Typically, a negligence claim forms the basis of personal injury lawsuits. A plaintiff must demonstrate the defendant’s obligation to keep them safe from harm to establish carelessness on the defendant’s part. In contrast, a defendant who asserts risk assumptions claims they are not responsible for the plaintiff.
According to New York law, there are three basic types of risk assumptions. There are various ways in which each of these categories may affect a case.
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Primary assumption of risk
The strongest of the three is the fundamental assumption of risk, and it is also the version that is most rarely used. Essentially, it describes situations in which a person’s refusal to take a risk would fundamentally alter the character of a problem.
Express assumption of risk
Individuals must expressly acknowledge that they have taken on the risk of harm to do so. Usually, this is accomplished in writing. This disclaimer is typical for many sports, including skydiving and white water rafting. The person signing these contracts typically agrees to relinquish any claims they may have if they are hurt.
According to New York law, these contracts are not always enforceable. A facility that charges for a recreational activity will probably not be able to use the assumption of risk defense. The court typically decides whether a particular facility or activity is prohibited from bringing an express assumption of risk claim.
Implied assumption
The assumption of risk is the final factor, also known as the secondary assumption of risk. When the courts find that there was no express written assumption of risk, the defendant is not automatically out of luck. When it seems the plaintiff accepted the risk voluntarily despite a written waiver not existing, there has been an implicit assumption of risk.
Comparative negligence
Usually, a plaintiff’s recovery is completely barred by their initial and express assumption of risk. The implied assumption of risk does not work that way. The courts will use a comparative negligence test to assess how much blame each party bears. Afterward, the judge may set a ceiling on the plaintiff’s damages.
