Understanding Assumption of Risk in Personal Injury Cases

The definition of risk

While personal injury cases can be complex, some—such as a fender bender involving two vehicles—are generally considered simple. However, even these cases can become complicated when the parties dispute the accident’s cause, and lead to a bitter legal fight.

In some personal injury cases, the defendant may assert the defense of assumption of risk. Depending on the specific facts of the case, they could subsequently escape liability for your injuries or damages.

Understanding this area of law, and how it applies to personal injury cases, can be helpful in your own claim. Gordon McKernan Injury Attorneys are well-versed in Louisiana assumption of risk law and precedent, and can help you navigate these complex legal waters. Learn more about this legal concept by reading our blog below!

What Is Assumption of Risk?

Assumption of risk is a legal doctrine that applies to the area of personal injury law. By asserting this doctrine, the defendant in a personal injury case can avoid liability for the plaintiff’s injury.

Under the assumption of risk doctrine, a plaintiff that knowingly and willingly places themselves at risk of an injury is responsible for their injuries or damages resulting from that risk.

For example, if you decide to go bungee-jumping, the company will have you sign a release of liability form that releases them from any fault should you be injured. If you sign the waiver and still decide to jump, you’ve assumed the risk of that activity.

However, the assumption of risk is dependent on the facts of the case. When riding a roller coaster, there is a certain amount of risk that you assume by getting on a ride that’s known to be dangerous. But if your seatbelt fails and you’re thrown from the ride, sustaining catastrophic injuries, you could hold the theme park liable for their negligence to maintain and inspect the roller coaster for safety.

Types of Assumption of Risk in Louisiana Personal Injury Claims

There are four basic types of assumption of risk: primary, secondary, express, and implied.

A red sign warning to use trails at one's own risk

Primary assumption of risk is usually used in activities such as organized sports, where an experienced participant is presumed to understand the risk of participating, such as the possibility of experiencing a concussion during a football game. Another way of putting this is that the defendant had no duty of care to the plaintiff whatsoever, so they cannot be found negligent.

Secondary assumption of risk occurs when a defendant does have a duty of care, and breached that duty. In a secondary assumption of risk scenario, it will be evaluated like comparative negligence.

Express assumption of risk involves a contract or agreement between the involved parties that contains a clause absolving the defendant from liability. This is similar to the bungee jumping example above: the plaintiff signed a waiver stating they understand the risks and agree to participate regardless, assuming the risk of the activity and relieving the owner from liability.

Implied assumption of risk argues that a reasonable person would understand an activity’s risks, and by participating voluntarily assumes the risk.

Pure Comparative Fault and the Assumption of Risk

Louisiana is what’s known as a pure comparative fault state, which means that parties in a personal injury case are assigned liability based on their relative fault in the accident. In an assumption of risk context, this means that an implied assumption of risk or secondary assumption of risk is decided using the comparative fault standard.

Basically, if you’re in an accident and the defendant asserts secondary or implied assumption of risk on your part, you could still recover some compensation for the damages you’ve suffered. Your proportion of liability, and thus proportion of damages, will be decided by a court or in arbitration.

Injured in an Accident in Louisiana? Get Gordon Today!

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Whenever you’re in an accident and someone else is at fault, you need a lawyer to help you prove your claim and recover the compensation you deserve. The Louisiana personal injury attorneys with Gordon McKernan Injury Attorneys have over 679+ years of combined legal experience helping victims recover the money they need to heal, and we can help you too.

Give us a call at 888.501.7888 for a free consultation about your case. A dedicated lawyer will listen to your story and get started on your claim right away.