You might think that because you were hurt in an accident that was the fault of someone else, that you have an air-tight personal injury case. Not necessarily true.
There is an important concept in personal injury law known as the ‘assumption of risk.’ This concept essentially means that if you knew or should have known that there was a risk of injury involved in an activity, you may be ineligible for compensation if you are injured while participating in that activity. It is also often paired with the concept of “contributory negligence.”
Definition of Assumption of Risk
The doctrine of assumption of risk may arise in a case where the wrongdoer (defendant) claims that the person injured knowingly partook in an obviously dangerous and hazardous activity, and thereby contributed to his own injury.
Here’s an example:
If you choose to go rock climbing without any prior experience or training, you are assuming the risk that you could be injured in a fall. If you are injured in a fall, you may not have legal recourse against the rock climbing gym or the company that supplied your equipment because you assumed the risk of injury when you decided to go rock climbing.
Here’s another example:
You’re out with some friends, have a few drinks at a bar, and then leave. The driver of the car was drinking with you. Because he is intoxicated, he accidentally rear ends a car, leaving you with a personal injury. He gets a ticket, or may be taken to jail for suspected DUI (driving under the influence).
An ambulance arrives and takes you to the nearest ER for evaluation. The hospital staff runs diagnostic tests (X-rays, CT scan, or maybe an MRI) and administers proper treatment. You may need to have follow-up treatment. You miss a few days of work, go to physical therapy, and then want to settle with the driver’s insurance company.
In either example, you may or may not receive a settlement, but if you do, it may be much lower than you expected. Why? Because you knowingly assumed the risk of partaking in a dangerous situation. You made a decision to practice rock climbing, an inherently dangerous sport. You made the decision of getting in the car with a driver that you knew was drinking. The particular defendants (through their insurance company or attorneys) could say that you took the chance of getting hurt because of these decisions and therefore, contributed to your own injury.
Additional Scenarios of Assumption of the Risk
There are many different scenarios where assumption of the risk may occur. Here are a few.
- A driver or passenger does not use his or her seatbelt and is injured in a car accident that was the fault of another driver.
- A worker fails to use safety equipment provided at work and sustains an injury.
- A skier falls and breaks a leg.
- A pedestrian walks out into the street from between two cars and is hit by a driver who couldn’t stop in time.
The concept of assumption of risk is important to understand if you have been injured in an accident. If you or a loved one was hurt in an accident and you are not sure whether it falls under the “assumption of risk” doctrine, send me an email or call me at (305) 300-2702.
We can discuss the ins and outs and see whether you may be eligible for some compensation. Consults are always free.