Understanding Assumption of Risk
July 3, 2024 | Sagi Shaked | Personal Injury
If you assert a personal injury claim against someone, they are allowed to respond with a defense (or multiple). Numerous defenses may be available, depending on the facts of your case. ‘Assumption of risk’ is a common defense against a personal injury claim.
Assumption of Risk – Definition
‘Assumption of risk’ is an affirmative defense to certain types of negligence claims. Under the assumption of risk defense, the defendant asserts that you knew the risks of the activity but voluntarily participated anyway.
When you voluntarily agree to participate while knowing the risks, you might release the defendant from liability in case you suffer an injury. In other words, if something happens, your assumption of risk could become an assumption of liability.
What Is Assumption of Risk? The Legal Elements of the Defense
The legal elements of a claim are the facts that have to prove to win. For an assumption of risk defense, the following four facts must be proven:
- You had actual knowledge of the specific risk involved, and you were aware of the potential dangers.
- You must have voluntarily accepted the risk. The assumption of risk defense does not apply if you were coerced into participating.
- You must have actually appreciated the risks involved—the likelihood of a mishap and the probable seriousness of a mishap if it were to occur. In other words, it’s not enough that you “should have known.”
If you understood the risks but were acting unreasonably when you accepted them, the defendant’s assumption of risk defense will be strengthened.
The Standard of Proof: ‘A Preponderance of the Evidence’
The standard of proof in a civil case is not ‘beyond a reasonable doubt’ as it is in a criminal case. Instead, the applicable standard of proof is ‘a preponderance of the evidence.’
All that means is that your evidence must be of sufficient weight and quality to convince the court that you are more than 50% likely to be right. Even a 51% likelihood is enough.
General Denial vs. Affirmative Defense: The Burden of Proof
In court, once you file a claim seeking compensation for a personal injury, it is up to you to prove your own claim by a preponderance of the evidence. The defendant can file an answer asserting either a general denial of your claim (as most defendants do) or an affirmative defense.
If the defendant files a general denial, the burden of proof remains on you to establish the defendant’s liability by a preponderance of the evidence.
If, instead of a general denial, the defendant asserts an affirmative defense such as assumption of risk, the game changes. Now, the burden of proof switches to the defendant. It is up to them to prove their own affirmative defense by a preponderance of the evidence.
Assumption of Risk Examples
Following are a dozen out of thousands of possible activities that may or may not generate assumption of risk issues:
- Undergoing surgery;
- Working out at a gym;
- Attending a baseball game;
- Participating in a contact sport;
- Skydiving;
- Boxing;
- Using a trampoline;
- Playing paintball;
- Riding a mechanical bull;
- Taking a hot air balloon ride;
- Climbing a mountain; or
- Riding on a roller coaster.
Without the assumption of risk doctrine or something like it, businesses could not offer many of the foregoing activities due to the risk of liability.
Express Assumption of Risk
Express assumption of risk occurs when you specifically warn the defendant of the risks of an activity, and the defendant specifically agrees, either verbally or in writing, to accept those risks.
Implied Assumption of Risk
Implied assumption of risk governs your claim if nothing was said about risk, but the circumstances were such that the defendant should have known the risks of the activity (typically, they were obvious) before participating.
Talk to a Florida Personal Injury Lawyer if You Think You Have a Claim
In personal injury law, very few lawyers charge by the ‘billable hour.’ Instead, they use the contingency fee system where your legal fees equal a percentage of whatever amount you win. The best part is that if you don’t win, you pay no attorney’s fees.
Contact Our Personal Injury Law Firm in Miami, FL
If you’ve been injured in an accident in Miami, FL, and need legal help, contact our Miami personal injury lawyers at Shaked Law Personal Injury Lawyers to schedule a free consultation.
Shaked Law Personal Injury Lawyers
20900 NE 30th Ave Suite 715
Aventura, FL 33180
(305) 937-0191