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What Is Assumption of Risk in a Personal Injury Case?

Posted in Personal Injury on November 11, 2020

The civil justice system works by compensating those who are injured by negligence. If the victim knew the activity had injury risks, however, this could affect the person’s ability to recover compensation from a defendant. The defendant could use the assumption of risk defense during the personal injury case to diminish or avoid a payout. If you believe the assumption of risk defense could impact your claim, contact a personal injury lawyer in Dallas for assistance.

What Is Assumption of Risk?

Assumption of risk means the injured person knew or reasonably should have known of the risks of a specific activity and voluntarily agreed to engage in the activity anyway. An example is voluntarily engaging in a dangerous activity such as skydiving or bungee jumping. In these circumstances, the participant is willingly accepting the possibility of serious injury risks by engaging in the activity. If you were knowingly participating in a risky activity when your accident and injury occurred, this could affect your right to recover compensation from a defendant in Texas.

The assumption of risk defense works in Texas by voiding accountability for a victim’s injuries and related losses. The goal of a personal injury claim is to hold a negligent party responsible for his or her careless or reckless behavior in connection with an accident. An insurance claim aims to prove that the negligent party is liable for the injured person’s damages. During a claim, an insurance company will investigate the accident and analyze evidence that shows why the injury occurred. Under Texas law, if the defendant shows proof that the plaintiff knowingly assumed the risks associated with an activity, this could allow the defendant to avoid liability.

How Might Assumption of Risk Affect Your Case?

The assumption of risk defense could potentially diminish the compensation you recover from a defendant. It may bar you from financial recovery entirely, depending on the circumstances. The defendant will have the task of proving the applicability of the doctrine of assumption of risk defense. The defendant will need to prove that you were fully informed about the nature and level of risk involved in an activity and that you willingly chose to participate in the activity anyway.

If the risks of an activity were obvious to the average person, it could make it easier for a defendant to use the assumption of risk defense. If the risks were not obvious, however, the defendant will have to prove he or she properly described the hazards involved and warned you before your participation. If you were not fully informed of the risks of an activity, this defense may not apply. The defendant bears the burden of proof for an assumption of risk defense.

What If You Signed a Liability Waiver? Do You Still Have a Case?

In many cases, a person cannot participate in a known dangerous activity unless he or she signs a liability waiver. Liability waivers release companies or individuals from legal responsibility for a participant’s injuries or death. If you signed a liability waiver before participating in the dangerous activity that injured you, this could impact your ability to bring a claim. The defendant will still have the responsibility to prove that the harmful element was a risk or hazard you knew about. If the defendant was grossly negligent or reckless in causing your injury, this will typically cancel out any liability waiver you signed. This will give you the ability to still pursue compensation from the defendant.

Comparative Negligence in Texas

Another argument that could diminish your award is comparative negligence. In Texas, the comparative negligence doctrine states that two parties can share fault for the same accident. If you are partially to blame for your injuries, you may still be eligible for partial compensation. As long as you are less than 50% at fault for your injuries, the courts will still grant you an award. The courts will simply reduce your award by an amount that equates to your percentage of fault. Learn more about the assumption of risk defense and comparative negligence on your specific case by contacting an attorney.