Understanding the Assumption of Risk Defense in Injury Lawsuits

If you’re injured in an accident, you may hear the Defendant tell you (or your injury attorney tell you that the Defendant is saying) that you “assumed the risk” of your injury. That doesn’t seem to make any sense though–who would voluntarily subject themselves to being injured?

What Does That Actually Mean?

Assumption of risk however, doesn’t mean exactly what you might think that it means.

Assumption of risk means that you knowingly and voluntarily agreed to participate in an activity that you knew could, possibly, lead to injury. Thus, the theory goes, you accept the possible risks, and you then cannot then later complain or sue, when you are injured as a result of the natural consequence of your actions.

Natural Consequences?

Assumption of risk, however, is not a fool proof defense, and an injury victim seeking compensation for injuries, can overcome the defense. One way is to show that your accident is not a natural and ordinary consequence of the activity you engaged in.

Imagine you are playing tackle football. Things like broken bones, or brain injuries, are all expected consequences of that activity, and you can get those injuries, even if nobody did anything wrong.

But imagine instead, that you get heat stroke because a coach leaves you on the field for too long, doing too much, without hydration. Is heat stroke a natural and expected consequence of playing tackle football? It isn’t; done safely, you can both avoid heat stroke, and also still play football in the way it was intended to be played. Because heat stroke is outside of the natural and expected consequences of playing tackle football, the assumption of risk defense would fail and the victim could make a claim for compensation.

Assumption of Risk and Comparative Negligence

Assumption of risk has been incorporated into and is often treated the same as comparative negligence, but there is a difference between these two defenses.

Comparative negligence implies that you, as the victim, did something wrong or careless to contribute in full or in part, to your own injuries. But with assumption of risk, you did nothing wrong–you didn’t act carelessly–other than just participating in a given activity.

You can, in some circumstances, have both.

Imagine again that you are playing tackle football. You decide that you don’t want to wear padding, or else, you voluntarily opt not to get water, when the heat outside is extreme. In these cases, even though the sport itself may be inherently dangerous, it is also your decisions that lead or contributed to your accident or injuries.

Defendants Use the Defense

As you might expect, Defendants often try to say that you assumed the risk of everything–even things that should have no inherent risk attached to them.

For example, although we all know anybody in a car can get into an accident, getting into an accident is not a natural, expected and ordinary consequence of driving. A negligent driver can’t, for example, claim that they are not liable because you assumed the risk of driving your car.

We know what defense the defendant will use in your case. Let us help you get compensation for your injuries. Call our Boston personal injury lawyers at The Law Office of Joseph Linnehan, Jr. today at 617-275-4200.