Assumption of the risk is a legal concept that can limit the compensation in a San Antonio personal injury claim for medical bills, lost income, and other damages after an accident. Here are the basics regarding this legal doctrine.
What Is the Assumption of the Risk?
Assumption of the risk is a proposition that stands for the idea that if a person voluntarily chose to engage in a behavior, they accepted the known dangers associated with that behavior, including the possibility of getting hurt. For example, if a person joins a football league, they assume the risk that they could be tackled.
If a person voluntarily participated in a risky activity and understood the dangers involved, this legal doctrine could limit or eliminate their ability to recover financial compensation if the defendant raises this defense and is successful in arguing it.
Different Types of Assumptions of the Risk
Express assumption of the risk means that someone explicitly acknowledges the danger, such as signing a waiver before they participate in an activity. An implied assumption of the risk applies when a person’s actions indicate that they assume the risk.
Primary assumption of risk occurs when someone voluntarily participates in an activity with full knowledge of the potential risks involved, such as choosing to participate in inherently dangerous activities, such as extreme recreational activities or contact sports. In such cases, the person may be barred from seeking compensation for the injuries they sustained during the activity.
Secondary assumption of the risk occurs when a person knowingly engages in a risky activity, doing so despite the defendant’s negligence. For example, a person may participate in an activity without proper training or disregard safety warnings. They may be found partially responsible for their injuries, but their claim is generally not barred.
What a Defendant Must Prove in an Assumption of Risk Case
Defendants must show the following to raise this defense:
- The plaintiff knowingly assumed the risk.
- The defendant did not have a duty to protect or warn the plaintiff.
- The defendant did not breach their duty of care.
- The injury was not caused by the defendant’s negligence.
Which Factors Determine the Assumption of the Risk in Texas?
Courts generally consider the assumption of the risk defense on a case-by-case basis, considering factors such as:
- The type of activity involved
- Whether the activity was inherently risky
- The plaintiff’s knowledge and experience
- Whether the plaintiff had prior experience or training in the activity
- The defendant’s conduct
- Any warnings given about potential dangers
- Pre-established rules, such as whether there were any safety regulations or specific guidelines that participants were expected to follow
When the Assumption of Risk Doctrine Does Not Apply
The assumption of the risk defense is not an absolute defense in all cases. The defendant can be held responsible for injuries even when the plaintiff was aware of the risk, such as when the defendant:
- Acted with gross negligence or recklessness
- Intentionally created additional hazards
- Misled or did not properly warn the plaintiff about potential dangers
Contact George Salinas Injury Lawyers for a Free Consultation to Discuss Your Legal Options
The San Antonio motorcycle accident lawyer at George Salinas Injury Lawyers can review your individual circumstances and identify whether assumption of risk may affect your case or if it may be overcome. Contact us today to learn more.