Assumption of Risk: A Form of Comparative Negligence
There are thousands of Americans who like to live life on the edge. Many obtain enjoyment by participating in thrill seeking activities. Of course, there is a certain amount of risk to everything in life. However, in certain activities, a principle known as the assumption of risk may prevent you from recovering damages in the event of an injury.
What is assumption of risk?
Assumption of the risk is a defense that may be raised in an activity where there is an inherent risk involved. Some examples of activities with inherent risks include sky diving, jet-skiing, bungee jumping, horseback riding, as well as engaging in active sports.
Generally, assumption of the risk applies where a plaintiff had knowledge that the possibility of injury could occur given the activity involved and voluntarily assumed the risk created by choosing to engage in the activity.
Types of Assumption of Risk
There are two types of assumption of risk, express and implied. Express assumption of the risk applies when the individual who participates in an activity explicitly agrees not to hold the defendant liable for injuries related to the activity. Usually, agreement expressly assume the risk of an activity involves signing a release of liability or waiver.
Implied assumption of risk does not require a waiver or express agreement. Instead, it can be asserted any time a person exposes himself to an obvious danger. However, in order to assert implied assumption of risk the individual must have voluntarily and knowingly expose themselves to that danger.
How Assumption of Risk may Impact your Claim
Assumption of risk is an affirmative defense raised by a defendant in a personal injury action. Since it is an affirmative defense, the burden is on the defendant to prove that the plaintiff was aware of the risk involved in an activity and that the plaintiff voluntarily chose to engage in the activity.
If a defendant successfully asserts assumption of the risk as an affirmative defense, it will impact your case. The practical effect of a successful claim differs for express and implied assumption cases. Express assumption of the risk may serve as a bar to recovery if the agreement includes a provision that precludes any form of recovery from defendant. Otherwise, the court will look at such agreements and apply the assumed risk as a form of comparative negligence.
Comparative negligence measures the fault each party contributes to an injury. Florida follows a pure comparative negligence standard of recovery. Therefore, any award of damages will be reduced by the percentage of negligence contributed by plaintiff.
Contact Eighmie Law Firm, P.A.
If you or someone you know has been injured after participating in an activity, contact Eighmie Law Firm, P.A. in Port St. Lucie today. Do not hesitate to contact our firm even if an agreement was signed. Our attorneys will meet with you to determine whether you have a claim and whether any limitations apply.