Assumption of Risk

How Assumption of Risk Affects Your Case

“Assumption of the risk” is a legal doctrine that has been used by certain defendants for years in an attempt to avoid liability for damages that resulted from their negligence. For instance, in the case of certain employer/employee relationships, it may be said an employee “assumed the risk” by accepting or continuing employment with the employer, even after being made aware of the employer’s negligence. However, a 1939 congressional amendment to the Federal Employers Liability Act (FELA) ultimately abolished the “assumption of risk” defense in cases brought under the Act.

What some people may not realize is that decisions made under the FELA are also quite persuasive on negligence actions brought by seamen against their employers under the Jones Act. Assumption of the risk is not a defense to a seaman’s claim in admiralty. However comparative negligence is a defense. Assumption of the risk can apply in admiralty to certain passenger claims.

Many harmed individuals may not have a clear understanding of what “assumption of the risk” means, and how it could impact their case. That is why it is imperative for injured individuals and their family members to seek legal assistance from a well-versed and experienced maritime lawyer at Lipcon, Margulies, Alsina & Winkleman, P.A.

Our attorneys will work hard to ensure that if your case does go to trial, the defense will not get away with trying to taint the jury’s thought process by even suggesting the existence of an “assumption of risk” argument.

What Does “Assumption of Risk” Mean?

“Assumption of risk” generally arises when an individual voluntarily and knowingly assumes the risk of harm and/or injury stemming from a defendant’s negligence. If a person assumes the risk, that typically means he or she cannot obtain damages for the harm sustained as a result of the defendant’s acts (or failure to act), even if the defendant was reckless or negligent.

There are certain situations in which it can be said that a person has assumed the risk, and those situations fall under three wide-ranging categories:

  • Express agreement
  • Knowledge and implied acceptance of the risk
  • Voluntary assumption of the risk

Even if an individual is involved in a situation that falls under the one of the above-mentioned categories, a skilled attorney may be able to demonstrate the individual was acting reasonably in light of the risks, particularly in certain cases.

Express Agreements to Assume the Risk

Certain parties might elect, prior to the occurrence of an injury or harm, to enter into written agreements that ultimately release the defendants from any duty of care owed toward the injured parties, as well as any liability for issues that may arise as a result of the defendants’ negligent or reckless conduct. This is commonly known as an “express agreement” to assume the risk, meaning the injured party will not seek to hold the defendant responsible for injuries sustained. Such agreements are typically enforceable, unless they are contrary to public policy.

Knowledge and Implied Acceptance of the Risk

If an individual is not aware of the risks associated with a particular job or other type of activity, he or she cannot be said to have “assumed the risk” in many instances. For example, if a person who due to inexperience, lack of information, or age cannot, or does not, appreciate the risks associated with a particular situation, that person will not be deemed to have consented to assuming the risks.

With respect to implied acceptance, in cases that do not involve express agreements, consent to assume the risks is implied based on an individual’s conduct under the circumstances. An example of this would be in the case of individuals who participate in sporting events. Those individuals will likely be deemed to have impliedly assumed the risks of injury as a foreseeable result of the sport in question.

Voluntary Assumption of the Risk

Injured parties are not barred from recovering damages under the “assumption of risk” doctrine unless their decisions are made freely and voluntarily. The individual must demonstrate some level of consent in order to relieve the defendant of the duty to act reasonably.

Anyone with questions about the “assumption of risk” doctrine and what role it may play in your case should contact a lawyer at Lipcon, Margulies, Alsina & Winkleman, P.A. as soon as possible for more information.