Assumption of Risk in Personal Injury Lawsuits

No matter how good your judgment is or how much caution you take in your actions, you understand that there is some risk involved in just about everything you do—engaging with life would be impossible otherwise. However, some actions involve more than others. The legal doctrine assumption of risk describes situations in which a person, understanding the level of risk involved in an action, made a decision to take that action—and, therefore, to take that risk.

In personal injury law, assumption of risk is one of many possible affirmative defenses: that is, allegations which a defendant may raise and has the burden of proving. Unlike a traditional defense, an affirmative defense, if believed to be credible by a jury or if determined to be accurate by a judge, can cause a case or issue in the case to be dismissed.  As such, an assumption of risk defense can be an intimidating one when presented effectively. In many instances, the defendant has acknowledged the literal truth of your claim, but nevertheless contends that you knowingly took a risk of some kind in engaging in a certain activity which prevents you from successfully bringing a claim. 

If the assumption of risk defense is raised in your case, you should know that negligence can, and does, still exist in cases where risk is present, and that awareness of risk on your part does not excuse negligence on the part of anyone who owes you a duty of care. It may further encourage you to be aware that New York is a pure comparative negligence state. This means that even if you are found to be partially at fault in a situation that involved negligence, you are permitted to recover damages for any percentage of negligence that was caused by the defendant. 

Need to Know:.

• An affirmative defense is a defendant’s allegation and must be proven by the defense.
• The assumption of risk defense alleges that the plaintiff knowingly took a risk, negating or diminishing the defendant’s responsibility for what resulted.
• New York is a pure comparative negligence state, meaning that the plaintiff is permitted to claim damages even if the court determines him or her to have some share of the fault.

What is Assumption of Risk?  

By invoking assumption of risk, a defendant alleges that the plaintiff not only took a risk, but understood the risk, and therefore willingly took on (assumed) the risk when taking the action. Such an allegation may fall under one of two categories:  

• Express assumption of risk exists where the injured party gave explicit legal consent to the risk associated with an action, typically by signing a waiver. Such waivers are not only used in medicine to indicate consent to surgery and other treatments, but are commonplace as a condition of engaging in leisure activities, from those that most would consider high-risk (skydiving, bungee-jumping) to more innocuous forms of exercise (indoor rock climbing on a synthetic wall or riding a zipline with one’s children at a local amusement park). Although few participants read these recreational waivers with care before signing, in most cases they are legally binding and enforceable under the law.
• In implied assumption of risk, the injured party willingly engaged in an action which a reasonable person would understand as carrying an inherent risk. While no contract exists decreeing that the individual assented to that risk, participation in the action is understood to carry consent to the risk associated with it. For example, a hiker injured while venturing on rugged terrain is unlikely to bring a successful case against the municipality where the terrain is located, purely on the basis of having been injured; it is hard to imagine that the potential for injury on such a trail would escape even the most casual hiker’s calculus.  

Assumption of risk hinges on the idea that certain risks are innately associated with an action and are, therefore, foreseeable in relation to the action. For example, a car accident is foreseeable in relation to driving a car, and head trauma is foreseeable in relation to playing football.  

One good way of determining whether a risk is foreseeable is considering how common it is to employ some kind of safeguard against it when taking the action. For example, a responsible person uses a seatbelt when driving a car and wears a helmet when playing football. 

Express Assumption of Risk 

Even in cases involving express assumption of risk, the foreseeability of a risk must be reckoned with. If you join a hunting expedition, regardless of the experience of your party and the safety measures practiced by yourself and those around you, you are likely aware that you have taken a risk—however slight—of being wounded by a stray bullet. You are not considering that particular risk when you go to a water park. 

The responsibility of the defendant is also critical. Suppose you go bungee jumping and sign a waiver taking responsibility for the dangers inherent to the sport. You then suffer an injury because the facilitator accompanying you failed to secure your harness properly. This danger was not a risk inevitably associated with the sport, but a failure of the defendant to exercise duty of care. 

In other words, if you or a loved one suffered injury after signing a waiver, you should not despair of pursuing legal action. A good attorney will carefully examine the language involved in your waiver to determine its enforceability and discover exactly what you agreed to—and what you didn’t agree to. 

Implied Assumption of Risk 

To successfully invoke implied assumption of risk, the defendant must make a convincing argument that the plaintiff took the risk knowingly.  

In one case that Block O’Toole and Murphy dealt with, our clients, members of a family, were among a large group of passengers on a speed boat, taking a Sunday afternoon ride after visiting a restaurant. The owner and operator of the boat, who was later found to have been intoxicated, crashed into a private island with enough force to eject the passengers, some of whom died while others sustained severe injuries.  

The defendant’s team contended that our clients had assumed the risk of riding with an intoxicated driver. Our clients told us that they had been talking to their fellow passengers, were not aware that the operator of the boat had been consuming alcohol, and had no reason to believe that their captain was failing to exercise proper care of the group.  

By arguing that the defendant’s team could not prove that our clients knew the operator had been drinking, we were able to defeat the defense. 

At other times, another party’s negligence may lead to someone taking a risk that they would not have taken otherwise. We handled a wrongful death suit involving a 25-year-old father of two who became trapped in an elevator during a power outage. After waiting for several minutes, during which time no help arrived, he attempted to escape the elevator by opening the doors and stepping into the hallway. Unbeknownst to him, the elevator was stuck between the 4th and 5th floors of the building, and he stepped into empty space, falling 50 feet to the bottom of the elevator shaft and suffering injuries that proved fatal.  

Block O’Toole and Murphy filed suit against several parties which we held responsible in the incident, all of whom contended that the plaintiff was the sole person responsible for his own death, since he took his fate into his own hands by attempting to leave the elevator, rather than wait for help to arrive. One of the parties we held responsible was the company maintaining the elevator, which lacked safety features that might have kept the plaintiff from opening the doors or enabled him to call for help; we also charged the owner of the premises with failing to maintain proper emergency lighting. While anyone can speak lightly about behaving sensibly after an accident, none of us can tell how we might react upon finding ourselves in a dark elevator car with no way to call for help. The persons responsible for safety measures that might have enabled the plaintiff to think clearly, and given him a sense of his options beyond taking the risk he did, failed to do their job. After mediations and discussions, we settled the case prior to trial for $7,200,000 on behalf of his wife and two young children. 

Defeating an Assumption of Risk Defense 

As you can see, assumption of risk is a complex legal matter, and you will need an experienced attorney to guide your understanding of how to respond to it during your case. Your own experience may prove helpful in getting the results you need. Your assumption of risk case may, like many others, deal with an area—such as skiing, scuba diving, or mountain climbing—requiring expertise that you already have. Communicating with your lawyer and sharing, not only the details of your incident, but the specialized knowledge required to fully understand it will go a long way toward providing material for an effective case.  

The experienced attorneys at Block O’Toole and Murphy are likewise committed to using their expertise to serve you. While an affirmative defense such as assumption of risk may claim to tell your whole story, our attorneys will ensure that your voice is heard. Contact the experienced personal injury attorneys at Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.