When someone is injured and brings a claim for their injuries, one of the defenses that a defendant may assert is known as “assumption of the risk.” Assumption of the risk is an affirmative defense, which means that the defendant is not liable for the plaintiff’s injuries because the injured person understood the risks of the activity that they engaged in prior to participating, but still chose to participate anyway.
Elements that Must Be Proven
Assumption of the risk is a very important defense for businesses that operate higher-risk activities, such as skydiving, bungee jumping, and horseback riding. As an affirmative defense, assumption of the risk must be proven by the defendant by meeting certain elements:
- The activity the plaintiff engaged in was inherently dangerous;
- The plaintiff was aware of the inherent risks prior to participating in the activity;
- The plaintiff was given clear oral or written consent to participate (under Texas law to claim an assumption of the risk defense, the plaintiff must have expressly assumed the risk); and
- The plaintiff must have voluntarily participated in the activity in spite of the risks.
Often the element most difficult to prove is the third. When all elements except for the third are proven, the court may split up liability among the plaintiff and the defendant.
Evidence for Proving Assumption of the Risk
In an effort to gather evidence to prove assumption of the risk, many businesses will:
- Have you sign a waiver that lists all of the risks;
- Print the risks on the back of your admission ticket (e.g., baseball ticket);
- Print a warning on a sign (e.g., “No lifeguard on duty. Swim at your own risk.”)
- Verbally inform you of the risks prior to you participating in the activity;
Cases often hinge on whether or not the plaintiff had actual knowledge of the risk. The law doesn’t solely look at whether he or she should have had knowledge of it. Sometimes an attempt to warn is not enough. It depends on the specific facts and circumstances of each case. Just because someone asserts an assumption of the risk defense, it doesn’t mean that it would prevail. That’s why it’s important to seek legal assistance as soon as possible.
The Attorneys at Ceja Law Firm Help Those in Houston Who Have Been Injured in an Accident
If you or a loved one has been injured in an accident due to the recklessness or negligence of another, it’s vital that you understand to what you are entitled under the law. With this information under your belt, you can make the important decisions regarding how you want to move forward. That’s why it’s in your best interest to consult with a knowledgeable and experienced Texas personal injury attorney.
At Ceja Law Firm PLLC, we understand the impact that an accident can have on many parts of your life and the importance of properly dealing with such negligence or recklessness. That’s why we will work to get you the compensation that you deserve. To learn more or to schedule a free consultation, contact us today!