What Is Assumption of Risk in a Personal Injury Case?

Personal Injury | December 14, 2020

You may encounter a few challenges as the plaintiff of a personal injury case in Kentucky. One possibility is the assumption of risk defense. A defendant could use this defense to allege that you were aware of the risks an activity posed and agreed to participate anyway. The assumption of risk defense could reduce your award or even bar you from recovery. Work with a personal injury attorney for assistance combatting this defense.

What Does Assumption of Risk Mean?

Assumption of risk is a legal doctrine that protects a person or party from financial liability for a victim’s injuries if that victim knew and assumed the risks of the activity in question. Under Kentucky’s assumption of risk doctrine, the courts may dismiss a personal injury case where the plaintiff assumed the risk of an injury. The assumption of risk defense is most common after accidents involving activities or events with known risks or hazards.

  • Amusement parks
  • Cliff jumping
  • Cruises
  • Excursions
  • Gyms
  • Horseback riding
  • Scuba diving
  • Skiing
  • Skydiving
  • Sports games
  • Trampoline parks

These are common examples of activities that come with assumptions of some level of risk. Most participants understand these activities are dangerous even if they do not anticipate actually suffering physical injuries. If a mishap and injury do occur, the victim may not be able to file a lawsuit based on the assumption of risk doctrine. If the defendant was negligent or reckless in some way, however, this could expose him or her to liability despite the assumption of risk.

How Can a Defendant Prove Assumption of Risk?

A defendant in Kentucky will have to prove the assumption of risk defense to avoid legal and financial responsibility for an injured victim’s losses. A defendant can base his or her argument on the implied or express assumption of risk. Implied assumption of risk says that if a reasonable person would have understood or foreseen the risks related to the activity, the plaintiff should also have assumed these risks. Proving implied assumption of risk may involve hiring witnesses to speak on what a reasonable and prudent participant would have known.

An express assumption of risk defense means the defendant has proof that the plaintiff expressed his or her acknowledgment of the risks associated outright. The most common piece of evidence used in this argument is a liability waiver. Liability waivers are documents participants often have to sign before they engage in dangerous activities. Signing a liability waiver or contract could be proof that the plaintiff knowingly assumed the risks of the activity and that the defendant will therefore not be liable for injuries.

How Can You Combat Assumption of Risk?

If you have reason to believe the defendant in your personal injury case will attempt to use the assumption of risk defense, contact an attorney for assistance with your case. An attorney can prepare a rebuttal for this defense to protect your right to financial recovery. Your lawyer may be able to prove that even though you signed a liability waiver, for example, the defendant failed to properly convey all the known risks associated with the activity. Your lawyer may also be able to prove that the defendant was reckless or grossly negligent and this is what caused your injuries.

A successful assumption of risk defense could eliminate your recovery entirely. It may also, however, only take away a portion of your award. Kentucky is a pure comparative negligence state, meaning while your percentage of fault may reduce your recovery, it will not bar you from compensation. If the assumption of risk makes you only 25% responsible for your injuries, for instance, you could still receive 75% of an award. Hire a personal injury lawyer in Kentucky to help you argue against the assumption of risk defense for the best possible case outcome.

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