If you are injured in an accident caused by the negligence of someone else, you deserve to be compensated. This is because in such an instance the defendant failed to uphold the duty that he or she owed to keep you safe. But what if you were aware of the risks involved in an activity, that is inherently risky, prior to partaking? Would another person still be liable for any injuries you suffer? As always, it depends upon the facts of each specific case. It’s important to understand when those facts amount to assumption of the risk as a defense to your personal injury claim.
What is Assumption of the Risk?
Assumption of the risk occurs when someone partakes in an activity that carries its own inherent risk. Activities in which assumption of the risk apply include things like attending a baseball game (at which you could be hit by a foul ball) or skydiving after receiving training and signing a waiver. Texas requires express consent: clear written or oral consent.
As an affirmative defense, the defendant has the burden of proving the following elements:
- The plaintiff engaged in activity that was inherently dangerous;
- The plaintiff was aware of the inherent risks before he or she participated in the activity;
- The plaintiff was given clear oral or written consent to participate; and
- The plaintiff must have voluntarily participated in the activity in spite of the risks.
If all elements but the third are met, the court may choose to split up the liability between the plaintiff and defendant.
Assumption of the Risk Can Be Used as a Defense – But May Not Hold Up
Assumption of the risk can be used as a legal defense to a personal injury claim when someone is injured after engaging in certain activities. However, it’s important to understand that an assumption of the risk defense doesn’t always hold up in court. This is because a defendant’s notice of the risks may have been insufficient or because he or she was still negligent. Even though someone may assume the risk of an activity, the defendant must still uphold his or her duty to act in a manner that would prevent injuries wherever they can. For instance, someone may assume the risk when they sign a waiver before skydiving, but if the skydiving business fails to regularly inspect the parachutes per industry standards, and a parachute was ripped and fails, leading to a severe injury, assumption of the risk would not make up for their negligence.
The Attorneys at Rochelle McCullough Help Those in Dallas Who Have Been Injured in an Accident
When you have been the victim of an accident caused by someone else’s negligence, you are often faced with handling the financial ramifications that accompany it. You should not be held responsible for someone else’s negligence. You may be entitled to compensation. Be sure to speak with a qualified Texas personal injury attorney as soon as possible.
The lawyers at Rochelle McCullough help victims of accidents to get their lives and their livelihood back on track. We will fight for your rights. To schedule a consultation, contact us today.