Once you’ve suffered a personal injury you may find that the costs of recovery are more than your bank account can handle. You could go to the person or business you believe was responsible for your injury, but what if they claim you were to blame for your own accident?
If you were participating in an activity with known risks such as playing a rec league basketball game or renting out powerful tools for a home improvement project, you may be told you assumed the risk of injury. You could have signed a waiver stating that you took responsibility for the dangers involved. These factors may be true, but that doesn’t necessarily mean you can’t file a personal injury claim and expect support while you heal.
What is Assumption of Risk in California Personal Injury Law?
The legal doctrine of “assumption of the risk” protects individuals and businesses in California from injury-related lawsuits. It provides a defense against litigation when someone is injured doing something they knew could expose them to harm.
You may be hurt while ziplining or when hit by a foul ball at a baseball game. When you attempt to earn an insurance settlement to help pay hospital bills, plaintiffs may use this defense to avoid responsibility. They could claim you assumed the risk of getting injured by voluntarily participating in an activity.
Express Assumption of Risk
There are two main types of “assumption of risk” applying to personal injury cases. The “express assumption of risk” covers situations where you acknowledged the inherent danger of your activity beforehand.
This is usually accomplished with a legal document presented by the individual or company involved. The “waiver of liability” is included in many agreements you sign before you are allowed to participate in an activity such as a sporting event or a recreational pastime.
Implied Assumption of Risk
These are instances where the “assumption of risk” isn’t officially noted beforehand. Examples can include a pick-up basketball game where no documents or acknowledgment express the potential hazards beforehand.
Courts can find that participants should have known about the “implied assumption of the risk” in their activity even if no verbal or written warning was offered.
Fighting the Assumption of Risk and Waiver of Liability Defenses
This “assumption of risk” argument, especially when backed up by a waiver of liability, can be an effective legal defense against your personal injury case. However, you don’t have to give up your hopes of earning help with your injury.
There are ways injured victims with effective personal injury lawyers can fight back to hold negligent parties responsible. These are some questions your attorney may ask:
- What does the assumption of risk cover? Was an activity truly covered by the doctrine of “assumption of risk.” Also, was the harm that occurred due to the agreed-upon “assumption of risk” or was it outside the normal definition of accepted risks for the activity?
- Was the hazard grossly negligent or even intentional? You may have agreed to accept a certain amount of risk, but the proprietor or property owner may have gone far and above what’s considered normal risk and negligence. You agree to some dangers when playing a sport in a park, but overly aggressive and dangerous behavior should not be protected from liability.
- Were you properly aware of the waiver of liability? Waivers can be hidden in sales agreements or the “fine print” so that you don’t realize that you’ve signed away your rights to compensation if you are hurt.
- Was the hazard created by an unlawful act? The individual or entity may have broken the law when they caused you to endure an injury. They would usually be liable for any injuries their violation caused.
Secondary Assumption of Risk and Comparative Fault in California
An individual or company doesn’t have to be 100% to blame for your injury to be counted on for support during your recovery. Under California’s comparative fault laws, you and a property owner or proprietor can share blame in an accident.
You may be found partially to blame for your injury for walking along and not paying attention to your surroundings. But property owners can also share in the liability. As an example, they may have been told about a hazard at their store or facility, but delayed fixing it. The hazard sat there until you got hurt. The “assumption of risk” may also partly protect them, but not fully release them from all liability.
You may have to accept 30% of the fault in your accident, while the property owner might accept 70% of the responsibility. You could still earn compensation to help cover your hardships, but your 30% of the blame would be deducted from your final award.
Contact a Personal Injury Lawyer in California
You or a loved one may have been injured while enjoying a “risky” activity, but that doesn’t mean the individual or company in charge of that activity can act carelessly and still avoid all liability. A California Personal Injury Lawyer can often find a way to hold those liable in your accident completely responsible for your hardships in recovery.
To find out if your injury case goes beyond the normal “assumption of risk” and can earn you compensation, contact Maison Law for a free case consultation. We want you to earn the compensation you need to make a full recovery and get your life back on track.