Proving Assumption of the Risk in Personal Injury CasesJuly 31, 2023 | - News & Insights
Under the law of negligence, a defendant who breaches a duty to a plaintiff and thereby causes injury generally is liable to the plaintiff for the injuries they cause. However, there are several notable defenses to allegations of negligence. One of the most basic is the doctrine of assumption of the risk. If you are facing a personal injury lawsuit in which the plaintiff voluntarily put themselves at risk of injury, a North Carolina personal injury defense attorney may be able to help you mount an assumption of the risk defense.
Two Types of Assumption of the Risk
Assumption of the risk refers to scenarios in which the plaintiff in personal injury litigation suffers an injury after voluntarily exposing himself or herself to a known danger. It arises most often when the plaintiff is engaged in sporting or recreational activities offered by the defendant, such as skiing, boating, scuba diving, rock climbing, skydiving, golfing, or attending sporting events, amusement parks, or races. The doctrine holds that a plaintiff who voluntarily exposes himself or herself to the known risks of an activity and becomes injured as a result is barred from suing based on a negligence theory.
There are two distinct types of assumption of the risk:
- Express: Express assumption of the risk applies when the injured party has entered into a contract that waives liability for the defendant. This could take the form of a written or verbal liability waiver.
- Implied: Assumption of the risk can be implied even when there is no express agreement between the parties where the plaintiff, through his or her actions or words, infers that he or she has knowledge of the risks of the activity. This could occur, for example, where a county fair attendee watches a ride operate for several cycles before deciding to go on the ride himself or herself.
The assumption of the risk doctrine is not to be confused with the contributory negligence doctrine. Under contributory negligence, a plaintiff who is partially at fault for his or her injuries generally is barred from recovery. The same result ensues if a plaintiff is found to have assumed the risk of their injuries, but assumption of the risk, unlike contributory negligence, does not require the defendant to show that the plaintiff engaged in negligent behavior. For further information about which defense would be most appropriate in your specific situation, please contact a North Carolina personal injury defense attorney.
Proving That a Plaintiff Assumed the Risk
To prevail on an assumption of the risk defense, the defendant must show (1) knowledge of the risk by the plaintiff and (2) consent by the plaintiff to assume that risk. The plaintiff’s knowledge can be actual (i.e., the plaintiff actually knew of the specific risk) or constructive (i.e., the risk was so obvious and immediately dangerous that an objective observer would have appreciated it). A plaintiff’s consent may be expressed (e.g., by signing a liability waiver) or implied (i.e., by entering freely and voluntarily into any situation that presents an obvious danger). North Carolina law also requires that there be a contractual relationship between the parties for a defendant to pursue an assumption of the risk defense. Speak to a North Carolina personal injury defense attorney for more information about the specifics of proving assumption of the risk.
Knowledge of Risk
A plaintiff’s knowledge of the risk may be either express or constructive. A defendant may show that a plaintiff had express knowledge of the risk, for example, by showing that the plaintiff signed a liability waiver that clearly and unambiguously enumerated the risks associated with the activity at issue. A defendant may show constructive knowledge by showing that the risk was “common, frequent, and expected” and that a person of ordinary knowledge would be presumed to have knowledge of it. For example, assume that the plaintiff was a spectator at a baseball game. The risk of being struck by a rogue ball is inherent to watching a baseball game and is one that is “common, frequent, and expected” among ordinary baseball spectators.
Consent to Assume Risk
A plaintiff’s consent to assume the risk likewise may be express or implied. A defendant may show that a plaintiff expressly consented to the risk by signing a liability waiver that clearly and unambiguously states that the plaintiff “assumes the risk” associated with the activity at issue. A defendant could show implied consent by demonstrating that the plaintiff, with knowledge of the risk, freely and voluntarily participated in the activity at issue. For example, assume that the defendant operates a skydiving business. After signing a liability waiver that explicitly mentions the risk of leg injuries upon landing and watching several other attendees jump out of the aircraft, the plaintiff likewise jumps. The plaintiff’s behavior (i.e., jumping from the plane after having been informed of the risk) indicates implied consent to the risk of a leg injury.
Limitations on Assumption of the Risk
Like most legal doctrines, there are limits on the applicability of the assumption of the risk doctrine. One of the primary limitations is that the doctrine only extends to risks that are normally incident to the activity at issue. Risks that are extraordinary or non-obvious — including risks caused by the negligence of the defendant — cannot be assumed by the plaintiff. For example, using the baseball game hypothetical above, the risk of being struck by a rogue ball is a risk normally incident to attending a baseball game. However, assume instead that the plaintiff was injured after being struck by a chunk of falling cement from the ceiling of the level above. The risk of being struck by falling cement is not inherent to attending a baseball game, and thus the assumption of the risk defense likely would not be available to the defendant in this scenario.
Seek Experienced Counsel From a North Carolina Personal Injury Defense Attorney
If you are facing a personal injury lawsuit and believe that the plaintiff may have assumed the risk of their injuries, you should speak to an attorney to discuss the specifics of your case in detail. For more information, please contact a North Carolina personal injury defense attorney at Harris, Creech, Ward & Blackerby by calling 252-638-6666 or using our online contact form.