A simple fender bender involving two vehicles is often considered a simple personal injury case. However, it can quickly turn into a complex legal matter. Disputes related to causation can lead to a bitter fight.

In some personal injury cases, the defendant may assert the defense of assumption of risk. Depending on the facts of the case, the defendant could escape liability for injuries and damages.

Understanding the law of assumption of risk and how it applies to personal injury cases can be helpful to your own claim.

What Does Assumption of Risk Mean in a Personal Injury Case?

The assumption of risk is a legal doctrine that applies to personal injury law. More specifically, it is a legal defense asserted by a defendant to avoid liability for a plaintiff’s injury. The assumption of risk doctrine holds that a plaintiff that knowingly and willingly places themselves at risk of injury in an activity is responsible for any injuries or damages resulting from the activity. 

Here’s an example. You know that hockey pucks often fly into the audience at hockey games. Therefore, you assume the risk of being struck by a hockey puck and receiving a head injury if you attend a game. Therefore, neither the owner of the arena nor the hockey teams would be liable for your injuries or damages.

Another assumption of risk example would be swimming in a pool without a lifeguard. Suppose there are signs posted that you are swimming at your own risk and there are no lifeguards on duty. If you and your children voluntarily choose to swim, you might accept the risk of a child injury.

Of course, there are exceptions to these rules when a victim could not have foreseen the assumption of liability.

If the swimming pool owner failed to maintain the drains and the drains were the cause of your injury, the pool owner could be liable. Likewise, if the arena owner failed to install the required safety measures to protect fans from stray hockey pucks, the owner could be liable under those circumstances.

Assumption of Risk is Fact Specific 

The courts look at a case’s specific facts to determine if the plaintiff assumed the risk of an activity. For example, riding a roller coaster is a dangerous activity. There are many opportunities for someone to be injured. Even though a rider knows the risk, they may still choose to ride the roller coaster. 

But suppose the seatbelt mechanism fails and the person is thrown from the ride. Suppose he sustains catastrophic injuries. The ride’s owner and operator may be liable if they failed to maintain and inspect the roller coaster to prevent accidents. 

Therefore, the assumption of risk is not a complete bar to damages in all personal injury cases. 

Types of Assumption of Risk in New York Personal Injury Cases

Generally, there are three types of assumption of risk: primary, express, and implied. Primary assumption of risk is often used in organized sports or recreational activities. It is generally presumed that an experienced participant understands and assumes the risk of participating in the sport or activity.

Express assumption of risk typically involves a contract or agreement between the parties that contains an assumption clause. The person participating in the activity signs a waiver and agreement stating they understand the risks and agree to participate regardless of those risks. The agreements often contain language relieving the owner or operator from any and all liability for damages. 

Express assumption of risk agreements may or may not be valid in New York. For example, if the facility charges a fee for the activity, express assumption of risk may not be a valid defense for the owner or operator. 

Implied assumption of risk argues that a person knowingly understands an activity’s risk and dangers but voluntarily assumes the risk, even though there is nothing in writing stating that fact.

Assumption of Risk Replaced with Comparative Negligence Laws

If a party expressly or primarily accepts the risk of an activity, the law generally bars the injured party from recovering compensation for damages. However, when the assumption of risk is implied, the courts often use a comparative fault standard to divide debts. 

New York enacted comparative fault laws that permit accident victims to collect compensation for injuries, even though the victim is partially at fault for the cause of the injury. With a pure comparative fault standard, the victim could be primarily responsible for the cause of the injury and still recover some compensation for damages.

The amount of compensation is reduced by the percentage of fault assigned to the victim for causing the injury. 

Many Factors Impact a Case Involving Assumption of Risk

Do not assume that you are barred from recovering compensation for damages because you assumed the risk of an activity. Numerous legal theories and laws may apply in your case. 

Examples include:

You could be entitled to compensation for damages if the other party was negligent, even though you knew there was risk associated with the activity.

Before you give up fighting for compensation or accept a low settlement offer, talk to an experienced personal injury lawyer.