Understanding Assumption of Risk
Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers | Personal Injury
If you are injured in an accident caused by someone else, you may face an uphill battle trying to prove liability. Most defendants (or their insurance companies) will try to shift the blame to you in an attempt to avoid paying for your injuries. There are many tactics they’ll use to do this – whether you are in a car accident or a slip and fall accident.
One defense that you may hear is “assumption of the risk.” This is the concept that you put yourself in a situation where you knew you could get hurt, and therefore you shouldn’t be allowed to hold anyone financially responsible for your injuries. Continue reading to learn more.
What Is Assumption of Risk?
Assumption of the risk is generally considered an affirmative defense, which may protect the defendant from liability even if they were responsible for your injuries. The defense is based on an argument that the plaintiff knew the activity they were engaging in was dangerous and still willingly assumed the risks associated with the activity.
In the past, assumption of risk was a more widely used defense that prohibited plaintiffs from recovering any compensation if they were engaged in behavior that contributed to their injuries.
Over time, many states, including Florida, adopted comparative fault laws to reflect a more equitable outcome when people were injured, even if they were partially at fault. However, assumption of risk is still used as a defense for things like getting hurt while engaging in sports.
Different Types of Assumption of the Risk
Historically, assumption of the risk could be express or implied. Implied assumption of risk has been replaced by Florida’s comparative negligence law (discussed more below).
Express assumption of risk exists if you sign a waiver of liability to participate in an activity that could be dangerous, such as bungee jumping.
Implied assumption of the risk means that you willingly accepted the risk involved with an activity as indicated by your words or conduct. For example, if you go trail running in a park, you probably didn’t sign any waiver to do so.
But by lacing up your shoes and hitting the trails, you took action that indicates you accepted the risks associated with running on uneven and rocky trails. If you fall and get hurt, you likely won’t be able to sue anyone for your injuries.
Now, if there are unexpected dangers that you wouldn’t expect to encounter on a trail run – such as a wire strung across the trail – that’s a different story. Assumption of the risk generally only applies to foreseeable risks associated with the activity.
When Does Assumption of Risk Apply in Florida?
Different states will have different laws relating to assumption of the risk. Florida courts apply the defense pretty narrowly. A 2017 court case confirmed that, in Florida, assumption of risk only applies to contact sports and contracts not to sue.
That means an assumption of the risk defense can only be asserted if you were injured playing a contact sport or signed a contract agreeing not to sue for injuries sustained in participating in a particular activity or event. Even when you’ve signed a contract, the court will carefully consider the agreement to determine whether such a contract is valid.
How Is Assumption of the Risk Related to Comparative Negligence?
Even though Florida generally does not recognize implied assumption of the risk, that doesn’t mean that you won’t be held accountable for your own actions if you contribute to your injuries.
Under Florida’s comparative negligence rule, if you are found to be partially at fault for your injuries, your compensation will be reduced in proportion to your own negligence.
For example, if you’re involved in a car crash but weren’t wearing your seat belt, the person who caused your accident will likely argue that your injuries were caused (or made worse) by your choice not to wear your seatbelt.
A reasonable person would wear a seatbelt in the car (and it’s the law). You could still recover some money, depending on the circumstances, but you probably won’t be able to recover compensation for whatever injuries can be attributed to the fact that you didn’t wear a seatbelt.
How Can a Lawyer Help if I’m Being Blamed for My Injuries?
If you were injured participating in a contact sport or during an activity in which you signed a liability waiver, that doesn’t always mean that you are completely out of luck for recovering compensation. And remember, most personal injury cases involve blaming the victim under a comparative negligence theory. There’s no guarantee that you’ll be able to recover compensation if you were to blame, but an experienced personal injury lawyer will make sure to pursue all possible options.
Defendants will always look for ways to shift the blame to you in order to get out of taking responsibility. A good personal injury lawyer will know whether an assumption of the risk defense is valid. They will help fight back against unfair blame that could unjustly reduce the amount of your financial award.
Contact the Pinellas County Personal Injury Law Firm Of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers for Help
For more information, please contact the Clearwater and St. Petersburg Personal Injury law firm of Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers at the nearest location to schedule a free consultation today.
We serve in Pinellas County, and its surrounding areas:
Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – Clearwater
1875 N Belcher Rd. STE 201,
Clearwater, FL 33765,
Perenich, Caulfield, Avril & Noyes Personal Injury Lawyers – St. Petersburg
2560 1st Ave S,
St. Petersburg, FL 33712,