After a personal injury suit is filed, both sides of the work hard to put together the strongest case possible to get a favorable outcome. The defendant of a personal injury suit will use every defense possible to reduce this or her liability for any injury caused, or eliminate liability entirely. In some personal injury cases, defendants will make an assumption of risk defense. This claim can be made even before a case goes to trial. The defense will likely raise this soon after a complaint is filed in an attempt to get a case dismissed right away.
Assumption of Risk
An assumption of risk defense means that the injured party knew, or should have known, what dangers were associated with the activity that caused their injury. Therefore, since the risks associated with an activity are known, another party cannot be held responsible for any injuries that result. If it can be proven that an injured party was aware of the dangers that caused the injury, he or she might lose the ability to receive compensation for the damages caused by injury.
There are many common examples of situations in which an individual could be found to be assuming a risk. If you participate in an activity that requires you to sign a waiver limiting the liability of another party for anything that happens, engage in a contact sport, or participate in activities that are known to be dangerous, you could be found to be assuming a risk.
Combating Assumption of Risk
To determine how to best combat a defense of assumption of risk, it is helpful to look at past cases Florida courts have decided. One of the most common areas in which assumption of risk appears is in sports injuries. This is because when you play a sport, there is an assumption that you know the dangers associated with playing that sport. Many sports require you to sign a liability waiver that includes some language about assumption of risk. Of course, this does not mean that if other parties are negligent that they could not be held liable for any injuries.
- Petruzzella v. Church on the Rock of Palm Coast: A volunteer musician at a church did not assume the risk of tripping over an electrical cord and being injured. The court found that there was not an express contract of assumption of risk, like contact sports that require the signing of a liability waiver.
- Kuehner v. Green: This involved injury in a contact sport. To determine damages or liability outside of the risk a sports player assumed, the court looks to the portions of the injury not caused by the injured party.
If you have been injured, the personal injury attorneys at Dennis Hernandez & Associates are here to help. We are ready to combat defenses the defense throws at us, including assumption
(image courtesy of Steven Lelham)