Aside from comparative negligence, the doctrine of assumption or assuming the risk is one of the most common defenses alleged in personal injury lawsuits. Assuming the risk occurs when a personal injury plaintiff knowingly and voluntarily assumes the risk of harm associated with the negligence or careless conduct of the defendant that led to the plaintiff's injuries. If it is proven that you, the plaintiff, assumed the risk then you will not be able to recover damages from the defendant. This is true, even if you can show that the defendant was reckless or otherwise negligent.
To be successful in an assumption of risk defense, the defendant must prove: (1) that you had actual knowledge of the risks involved in the activity or conduct that led to your injury, and (2) that you voluntarily accepted, either expressly or impliedly, such risk. It may also be required that the danger of risk involved was obvious to any reasonable person, or that the conduct or activity was obviously inherently dangerous.
By definition, you can either expressly or impliedly assume the risks involved in the conduct or activity that led to your injury. You typically assume the risk expressly by signing an agreement or waiver with the defendant. For example, most, if not all skydiving companies will require you to sign a waiver acknowledging that you accept the risks that come along with skydiving and you waive your right to sue the skydiving company if you are injured. In Colorado, many ski resorts and ski facilities also require similar assumption of risk waivers.
If you sign a contract accepting the risk and waiving your right to sue for injuries, then you will almost always be bound by the agreement and will be unable to file a lawsuit. The rare examples of a court not upholding your waiver include if the waiver is against public policy, or if the defendants conduct was intentional. For example, if the skydiving company intentionally ripped your parachute in an effort to injure you, you can sue the company for this conduct even if you expressly assumed the risk and signed a waiver.
On the other hand, you can also assume the risk impliedly through your words or conduct. For example, if the skydiving company tells you that landing in certain areas can be dangerous because the terrain is uneven, and you respond “okay, I got it” or nod your head that you understand, this conduct will mean that you assumed the risk of injury if you land on uneven ground. Accordingly, you must be careful with your words and body language when receiving information about dangerous conditions – you may inadvertently assume the risk of injury.
If you or a loved one has been injured in an accident, you should always consult with a qualified personal injury attorney—like those at theLaw Office of Jeremy Rosenthal—about your case. This is particularly true if you believe assumption of risk is involved, because this defense can limit or completely prevent your recovery of damages.
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