Kibbey Wagner, PLLC | April 19, 2023 | Personal Injury
What is assumption of risk? Assumption of risk is an affirmative defense to a personal injury or wrongful death claim. Although a defendant can assert this defense against a claim that arose in Port St. Lucie, it will be governed by Florida state law. Assumption of risk is one of the most common defenses to personal injury and wrongful death claims.
Elements of an Assumption of Risk Defense
You have probably “assumed the risk” of a personal injury with respect to a particular activity if both of the following statements are true:
- You were clearly aware of the risks involved. You must have actual knowledge of the risk and its magnitude. “They should have been aware of the risk” is not enough to trigger this defense.
- You voluntarily accepted the risk. Signing a waiver of liability is evidence of voluntary acceptance, but it might not constitute absolute proof. Alternatively, you might voluntarily accept a risk without signing a waiver of liability.
Keep in mind that there is a limit to how much risk you can assume. By taking a skydiving course, for example, you don’t assume the risk that the instructor will supply you with a defective parachute.
What Is an Affirmative Defense?
A plaintiff has the burden of proving a personal injury claim. To win, they must prove certain facts-–that you breached your duty of care towards them, for example. One way of defeating their claim is to simply present enough evidence to contradict their contentions.
Another way, however, is to wait until after they have completed their proof and then assert an affirmative defense. Asserting an affirmative defense is like saying, “Even if I did what the plaintiff says I did, I am still not liable because [insert affirmative defense here]. In this case, ”I am not liable because the plaintiff assumed the risk.” Assumption of risk is one of many possible affirmative defenses. The defendant must prove their own affirmative defense.
Comparative Fault: Assumption of the Risk Is Not Necessarily a Complete Defense
Suppose that the defendant behaved negligently even though the plaintiff assumed the risk of injury. If the defendant was partially at fault for the accident, the assumption of the risk defense won’t necessarily eliminate 100% of their liability.
“Assumption of Risk” Examples
Following are some examples of situations that might justify an “assumption of risk” defense.
- Suffering a slip and fall accident on a hiking trail;
- Attending a baseball game and suffering a brain injury from a baseball hit into the stands;
- Breaking your leg while playing rugby;
- Hurting yourself in a weightlifting gym;
- Suffering a concussion during a boxing match;
- Entering an area posted with signs such as “Enter at Your Own Risk” or “Beware of Dog.”
- Injuring your neck on a roller coaster, especially if other riders were not hurt.
Even under these circumstances, a child might not be considered to have assumed the risk if they were too young to realize the danger involved.
Waivers of Liability
At some point, you have probably signed a “waiver of liability,” typically before participating in a sport or athletic activity. If you are like most people, you have signed dozens of them. A waiver of liability is designed to provide the other party (typically a property owner) with an “assumption of risk” defense in case you get hurt.
You can challenge waivers of liability in court and at the settlement table. Following are some of their limitations:
- It must be conspicuous. You probably can’t enforce a waiver of liability that is buried in the fine print, deep inside a long document.
- The language must be clear and unambiguous.
- The defendant cannot disclaim liability for recklessness or intentional misconduct, only negligence.
- Waivers of liability signed by parents on behalf of their children have limited enforceability.
If you are concerned about the effectiveness of a waiver of liability, have your attorney look it over.
Talk to a Personal Injury Lawyer
Whether a personal injury claim can withstand a defendant’s determined response is not always obvious. In addition to assumption of the risk, other possible defenses can apply to a personal injury claim. Seek a free initial consultation with a personal injury lawyer so that you can discuss the matter.
Contact the Personal Injury Law Firm of Kibbey Wagner, PLLC in South Florida For Help Today
For more information, please contact the Stuart, Port St. Lucie, or Palm Beach Gardens personal injury law firm of Kibbey Wagner, PLLC, at your nearest location to schedule a free consultation today.
We proudly serve Martin County, St. Lucie County, Palm Beach County, and its surrounding areas:
Kibbey Wagner, PLLC – Stuart
73 SW Flagler Ave
Stuart, FL 34994
Kibbey Wagner, PLLC – Port St. Lucie
1100 SW St. Lucie West Blvd. Ste 202
Port St Lucie, FL 34986
Kibbey Wagner, PLLC – Palm Beach Gardens
300 Avenue of the Champions Ste 220
Palm Beach Gardens, FL 33418