Risk assumption is a defense that can be used in most negligence and personal injury suits, and it arises when a person voluntarily assumes the risk connected with a defendant’s negligence. If a plaintiff assumes the risk, he or she cannot recover for harm resulting from the conduct of the defendant, even if that person was reckless or negligent. To prove such a defense, a defendant must prove that the plaintiff knew of the activity’s risks, and that the risk was voluntarily accepted.
Can a Plaintiff Sue for Injuries After Signing a Waiver?
In most cases, the answer is no. The purpose of assumption of risk is to minimize the defendant’s liability, but the defense is based on contract law -; and as such has a few weak points.
* The agreement cannot be a public policy violation
* Agreements cannot cover an intentional act
* Plaintiffs who are unable to understand their terms and conditions cannot sign waivers
Express Risk Assumption
One of the elements of proof for this defense is that the plaintiff must accept the risks of the activity. Such acceptance can be ‘express’ (agreed upon by both parties), or implied (demonstrated by the plaintiff’s behavior or words). Express assumption usually takes a written form, and implied assumption usually comes in the form of an oral statement or acknowledgment. When proving the defense, a Plaintiff Lawyer in Rapid City SD must carefully examine the circumstances of his or her client’s injuries.
Conduct and Statements that Cannot be Waived
Implied assumption can be relatively broad, but there are some types of conduct that cannot be waived, such as criminal behavior, and that which can’t be foreseen. For instance, a person could not foresee the risk of being shot while in a movie theater, so he or she could not assume the risk.
Common Risk Assumption Cases
Assumption of risk is used in cases involving obviously dangerous activities, premises liability, contact sports injuries, extreme sports such as skydiving, and disputes involving release clauses and waivers. The latter often contains language covering the plaintiff’s assumption of risk.
Hiring an Attorney for a Risk Assumption Case
The defense can prevent you from making a monetary recovery for your injuries, and it is important to consult with a Plaintiff Lawyer in Rapid City SD if you are involved in such a dispute. Your lawyer can answer your questions and he or she can represent you in a civil court case.