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Understanding Assumption of Risk

Published on Mar 31, 2023 by Thomas Law Offices.

Understanding Assumption of Risk

If you’re injured and choose to pursue legal action through a personal injury claim, the defendant may raise a defense known as “assumption of risk.” Understanding this legal doctrine is important because it could limit or bar your right to recover compensation for your injuries.

Below, we’ll look at the legal definition of “assumption of risk” and what it might mean in your personal injury case.

What Does “Assumption of Risk” Mean in Personal Injury Cases?
Assumption of risk is a legal doctrine that states that the plaintiff (the injured party) knowingly took on risk when they entered an area or participated in an activity. Any injuries they suffered, therefore, are their own fault, not the fault of the defendant. A defendant may raise the assumption of risk defense as a sort of liability waiver, protecting themselves from legal responsibility for the victim’s injuries.

In order to successfully use the assumption of risk defense, the defendant must be able to prove:

  • That the plaintiff knew about the risk involved, and
  • That the plaintiff voluntarily accepted the risk (either explicitly or by their conduct)

Assumption of risk can thus be categorized as express or implied.

Express Assumption of Risk

Express assumption of risk means that the plaintiff openly agreed (by either verbal or written agreement) to accept the risk and waive their right to sue the other party for any injuries sustained.

Example: Before taking part in a guided skydiving jump, you sign a waiver releasing the company from liability in the event of an accident.

Implied Assumption of Risk

Implied assumption of risk does not involve a written or oral agreement. Instead, the plaintiff assumes the risk simply by participating in the activity or being on the premises, acting in a way that demonstrates they have knowledge of the hazard.

Example: You ride a roller coaster at an amusement park, even though you know that riding a roller coaster can be dangerous.

What Type of Personal Injury Cases Involve Assumption of Risk?

The legal doctrine of assumption of risk can be raised in any type of personal injury case, but it is most often associated with premises liability cases.

Premises liability is an area of civil law that covers injuries occurring on another person’s property. If, for example, you fall on a broken staircase that was knowingly left unrepaired at a hotel, you will likely be able to recover damages for your injuries through a premises liability personal injury claim.

Using the assumption of risk defense, however, a property owner may be able to avoid liability for an accident that occurs on the premises they own. In this way, the property owner essentially argues that it was the injured victim’s own fault for being in a dangerous place or engaging in a dangerous activity.

Assumption of risk is sometimes brought into the argument if:

  • “Danger,” “Keep Out,” “No Trespassing,” or “Enter at Your Own Risk” signs were posted
  • “Beware of Dog” signs were posted, and the plaintiff suffered a canine attack
  • The area was known to house dangerous chemicals or other hazardous materials
  • The facility or company operated extreme sports like bungee jumping or parasailing
  • The amusement park, water park, or swimming pool had rides and activities with known dangers

Understanding that assumption of risk is most closely linked with premises liability law; it should be noted that this doctrine may also be brought up in other types of civil cases. Here are just a few other types of personal injury cases that may involve assumption of risk as a defense:

  • Medical malpractice
  • Car accidents
  • Motorcycle accidents
  • Reckless driving and drunk driving accidents
  • Rideshare accidents
  • Workplace accidents
  • Boating accidents

“The Baseball Rule” and Assumption of Risk

Another example of situations in which the assumption of risk defense is often used is sporting events.

Let’s say you have tickets to a Cubs game at Wrigley Field. While taking in the game from an unscreened seating area, you’re struck by a foul ball and sustain a traumatic brain injury. Would you have the right to file a personal injury lawsuit against the Major League Baseball (MLB) organization to recover damages? With very few exceptions, you would not. This is because most Courts recognize an implied assumption of risk associated with attending potentially hazardous sporting events like baseball games.

This “Baseball Rule” in personal injury law has effectively barred many injured spectators from taking legal action. Dating all the way back to 1913, this legal theory was adopted to shield baseball promotion organizations (like the MLB) from liability for injuries that happen when a ball goes into the stands. In addition to baseball, the theory is used frequently in other types of spectator sports as well. However, there are notable (if rare) exceptions in which injured fans were able to recover compensation by proving that an organization acted negligently.

Contributory Fault and Assumption of Risk in Illinois Law

In Illinois personal injury law, more than one party can be at fault for an accident. This is known as “contributory fault” or “contributory negligence.” If the plaintiff is more than 50% at fault for their own injuries, they are barred from obtaining compensation. If they are less than 50% at fault, they can still recover monetary damages, but the amount will be reduced in accordance with the percentage of fault.

Illinois Code states that contributory fault “means any fault on the part of the plaintiff (including but not limited to negligence, assumption of the risk, or willful and wanton misconduct)” that is a proximate cause of the injury, wrongful death, or property damage.

This makes assumption of risk an important factor in personal injury cases. If the defendant can prove that you (as the plaintiff) assumed the risk, you may be found partially or fully responsible for your own injuries. If this is the case, your right to recover compensation for medical bills, lost wages, pain and suffering, and other damages will be reduced or taken away altogether.

Can I Still Recover Compensation if I Assumed Risk for an Activity?

However, just because you assumed risk doesn’t mean you are automatically barred from financial recovery. There are a few noteworthy exceptions to the assumption of risk defense.

One doctrine rests upon the “foreseeability” of the injury. Essentially, the injury must be the same kind of injury for which the risk was assumed. For example, a “foreseeable” injury might be falling and breaking your leg while skiing. Being attacked by an assailant while skiing, on the other hand, is not a foreseeable risk of hitting the slopes. In this case, the defendant may not be able to use assumption of risk as a valid defense.

Additionally, reckless or willfully harmful behavior on the part of the defendant may prevent them from being able to use the assumption of risk defense. For example, a bungee jumping company may use harnesses they know to be damaged. This intentionally dangerous behavior on the part of the company puts customers at a risk much greater than the risk they assumed by engaging in the activity.

A Thomas Law Offices Personal Injury Lawyer Won’t Let You Lose Your Rights

If you were injured in a personal injury event that may involve assumption of risk, you need a skilled, experienced, and knowledgeable attorney to protect your rights. It should be clear that cases involving the assumption of risk are highly complex. If you don’t have the right legal representative, you can quickly lose out on your rights—and be taken advantage of by a more powerful and protected defendant.

We urge you to get in touch with a Chicago personal injury law firm to discuss your rights and legal options in a personal injury case involving assumption of risk.

At Thomas Law Offices, we provide free case evaluations to injured victims in Illinois. Contact us today to schedule a no-cost, no-obligation consultation with a competent lawyer on our team.

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At Thomas Law Offices, our personal injury attorneys recognize that our potential clients are likely going through some of the most difficult times of their lives. We don't want you to have to worry about paying out of pocket for legal advice when you're just starting to learn your legal rights and options. That's why we provide free case evaluations. We'll offer our expert advice about your potential case and walk you through how we can help you.

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Tad Thomas - Trial Lawyer

Tad Thomas

Managing Partner

Tad Thomas has dedicated his practice to representing plaintiffs in various types of civil litigation, including personal injury, business litigation, class actions, and multi-district litigation.

After graduating with his law degree in 2000 from Salmon P. Chase College of Law at Northern Kentucky University, Mr. Thomas immediately opened his own private practice and began representing injury victims.

In 2011, Thomas Law Offices was established in Louisville, Kentucky. Over the past decade, Mr. Thomas has expanded his firm and now has offices in three additional locations: Cincinnati, Ohio, Columbia, Missouri, and Chicago, Illinois. He is also a frequent lecturer on topics like trial skills and ethics and technology.

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