Understanding Assumption of Risk

April 3, 2023 | Personal Injury

Understanding Assumption of Risk

Assumption of risk is a defense against liability, typically asserted by a defendant in a personal injury claim. If the defense is successful, the defendant avoids liability even if they caused the victim’s injuries by acting negligently. The assumption of risk defense only works under certain circumstances.

What You Have To Prove To Win a Personal Injury Claim

To win a negligence claim against an at-fault party who injured you, you must prove:

  • The at-fault party owed you a duty of care. Proving this much is often routine.
  • The at-fault party breached their duty of care to you through negligence, intentional misconduct, etc.
  • You suffered a personal injury (typically a bodily injury); and
  • The at-fault party’s breach of duty caused your injury.

You have to prove all four of the above-mentioned facts to win your claim.

Special Exception: Pennsylvania’s No-Fault Auto Insurance Regime

Pennsylvania operates a “choice no-fault” auto insurance regime. Drivers are expected, by default, to purchase at least $5,000 in Personal Injury Protection (PIP) insurance. In the event of an accident, the injured party generally looks to their own PIP insurance to cover their losses. If injuries are serious enough, Pennsylvania provides an exit that allows a driver to sue an at-fault driver.

However, Pennsylvania’s rules are especially rare in that drivers may opt out of its no-fault system. Drivers who do so must pay a higher monthly premium, but they may also file claims against the at-fault party after any accident, not just those that cause serious injuries.

Affirmative Defenses and the Burden of Proof

When seeking personal injury damages, you don’t have to prove your case “beyond a reasonable doubt.” Instead, you must prove your case by “a preponderance of the evidence.” This is a much easier standard to meet—even a 51% likelihood that your version of events is true will be enough. 

To defeat your claim, the defendant’s job is to deny you that 51%. They might seek to present enough evidence, for example, to prevent you from proving that their negligence caused your accident. On the other hand, they might pursue another strategy by raising an affirmative defense such as “assumption of risk.” There are many possible affirmative defenses to choose from.

How Affirmative Defenses Work

To assert an affirmative defense, the defendant must plead that defense to the court. In other words, the defendant must take the initiative to notify the court that they will rely on a particular affirmative defense, in this case, assumption of risk. The burden of proof then reverses; it is the defendant who bears the burden of proving their defense.

What the Defendant Has To Prove To Win an “Assumption of Risk” Defense

To prove the assumption of risk defense against a personal injury claim, the defendant must show that:

  • You knew the risk of the danger involved in the activity; 
  • You appreciated the nature and magnitude of the risk; and 
  • Nobody forced you to take the risk.

An example would be if you sued the defendant because you broke your leg skydiving or you suffered a slip and fall injury on a gym treadmill. The most common way of establishing an assumption of risk defense is to produce a waiver of liability that bears the accident victim’s signature. 

Waivers of Liability and Their Limitations

A waiver of liability form, signed by the victim, might read something like this:

“I understand that participating in this activity presents a certain risk of injury or death. I voluntarily choose to participate in this activity…”

Waivers of liability are generally enforceable except in cases of intentional, reckless, or grossly negligent behavior. You can even use a waiver of liability to win your case even if you committed ordinary negligence (but not gross negligence). The waiver must be clearly written, and it must be obvious. 

A Personal Injury Lawyer Can Help

A defendant facing liability is likely to consider many different possible defenses, including assumption of risk. If the claim is large, a defendant will try just about anything to avoid liability. An experienced personal injury lawyer can help you fight back and protect your legal rights and interests.

If you’ve been injured in a personal injury, please contact Marzzacco Niven & Associates at the nearest location to schedule a free consultation today:

Harrisburg Law Office
945 East Park Drive, Suite 103 Harrisburg, PA 17111
(717) 231-1640

York Law Office
2550 Kingston Road, Suite 210A York, PA 17401
(717) 995-8998

Wyomissing Law Office
833 N. Park Road, Suite 103, Room A Wyomissing, PA 19610
(717) 388-2325

Chambersburg Law Office
79 St. Paul Drive, Suite 1 Chambersburg, PA 17201
(717) 388-2378

Carlisle Law Office
354 Alexander Springs Road Carlisle, PA 17015
(717) 995-8732

Carbondale Law Office
30 Lincoln Avenue, Suite 101 Carbondale, PA 18407
(717) 995-8810

Lancaster Law Office
2173 Embassy Drive, Ste 123, Lancaster Pa 17603
(717) 616-2954

Lebanon Law Office
937 Willow Street, Suite D Lebanon, PA 17042-1140
(717) 995-8963