Assumption of risk is a legal doctrine that essentially bars an injured plaintiff from recovering damages if it can be shown they knowingly and voluntarily exposed themselves to danger. If you were harmed in an accident outside the home that could have been prevented, Los Angeles slip and fall attorneys at Ellis Law want you to know how the assumption of risk can impact your premises liability case.
Assumption of Risk Definition
Accidents are a fact of life, and many cannot be predicted or avoided. However, the law has determined that some activities come with inherent risk, and individuals who engage in these activities and get hurt cannot hold others liable for their injuries. Inherent risk is a level of risk that cannot be entirely eliminated without changing the nature of the event.
A defendant in a premises liability claim may raise the assumption of risk defense, asserting that the plaintiff understood potential hazards and chose to enter an area or participate in an activity despite these risks. According to this legal premise, if the plaintiff accepts this risk, the defendant is not liable for injuries and other damages that occur.
Types of Assumption of Risk
In court, the assumption of risk is generally recognized in two key ways.
Express Assumption of Risk
Express assumption of risk means the plaintiff gave verbal consent or signed a liability waiver acknowledging consent before participating in the activity or visiting the location in question.
Implied Assumption of Risk
Implied assumption of risk does not require formal consent. Like skiing, parasailing, or riding a roller coaster, the activity comes with inherent risks that should be obvious to anyone who participates.
Common Scenarios That Involve Assumption of Risk
Many everyday experiences and activities involve the assumption of risk, some of which you may have encountered in your own life. They include:
- Surgery and other medical procedures
- Swimming pools, amusement parks, and water parks
- Sports and extreme activities like bungee jumping and skydiving
- Areas clearly marked as dangerous, including locations with hazardous equipment or materials
While these activities and locations may have inherent risks, that fact alone does not absolve every defendant from liability in cases of gross negligence.
Take the example of an amusement park. Amusement rides are potentially dangerous, but that risk diminishes when rides are properly maintained and employees take necessary safety precautions. But what if a ride hasn’t been inspected for years, and obvious repairs have been ignored?
If that ride malfunctions and riders get hurt, the assumption of risk defense is unlikely to hold up in civil court. In this scenario, the property owner did not uphold their duty to protect the public by ensuring rides were safe and well-maintained.
Elements of Assumption of Risk
A defendant who asserts the assumption of risk defense bears the burden of proof. They must show danger was evident based on a preponderance of the evidence. Their attorney must prove more likely than not that risk was inherent to the activity or event.
To prove assumption of risk as a legal defense, three things must be true:
- The risk to the plaintiff must be inherent in the activity.
- The plaintiff must voluntarily consent to being exposed to that risk.
- The plaintiff must know, understand, and appreciate the inherent risk involved in the activity.
Cases involving the assumption of risk are especially complex. Because risk can fall into a gray area, it can be challenging to establish (1) what level of risk is acceptable and (2) if the plaintiff consented to that risk. It takes an experienced legal team to investigate the accident, gather essential evidence, and build a compelling case for compensation.
Limitations and Exceptions of Assumption of Risk Defense
If you assumed risk and were hurt, you are not automatically barred from recovering compensation for your losses. A defendant can be held liable in civil court if they acted with willful harm or recklessness.
Possible exceptions to the assumption of risk defense include:
Non-Foreseeable Injuries
Non-foreseeable injuries are injuries that occur outside the scope of inherent risk. If someone is hurt by a hazard they did not expect or were not made aware of, they may still have cause to bring a premises liability claim—even if they signed a waiver.
For example, you would probably assume there is a risk of diving into a shallow swimming pool. If you signed a waiver agreeing not to dive but did so anyway and got hurt, you would unlikely have a case for damages.
However, the assumption of risk would not apply if you fell on steps that were in disrepair or missing a handrail at the same public pool. Most likely, that is not a risk you expected or anticipated when visiting your local swim club.
Intentional or Reckless Behavior
Property owners have a duty of care to protect visitors from known hazards. If they willfully act recklessly, individuals who are harmed may have grounds to sue. Let’s revisit the example of the broken stairs. Suppose a property owner knows the handrail on the steps to their business is loose or missing altogether.
Or maybe the concrete stairs have begun to crumble from wear and tear, but the owner keeps putting off the repairs. If a patron falls and is seriously injured as a result, the assumption of risk defense may not hold up in court because the defendant knowingly and intentionally put others in harm’s way.
Non-enforceable Liability Waivers:
Sometimes, the waiver itself is the problem. Courts may not enforce ambiguous or overly broad waivers or liability waivers that violate state laws or public policy. It’s up to the plaintiff’s attorney to cast doubt on the assumption of risk defense.
At Ellis Law, we review the liability waiver to determine if it is signed, specific, contains clear language, and complies with state law. It may not be enforceable in a premises liability case if it does not meet these criteria.
Trust the Ellis Law Guarantee: No Fee Unless We Win
California injury attorneys at Ellis Law work to overcome any defense standing in the way of recovering compensation for clients injured through no fault of their own. We are committed to holding negligent parties accountable in premises liability cases where known hazards could and should have been prevented. There is no fee if we don’t resolve your claim successfully.
If you were recently injured in an avoidable accident, help is available. Call 213-861-4633 or Contact Ellis Law online to schedule a free case review. Based in El Segundo, we represent clients in and around Los Angeles, Bakersfield, Anaheim, and throughout California.
