Sometimes, a defendant can raise the defense of the assumption of the risk to avoid accountability when their negligence hurts you, the plaintiff. The law applies mainly to sport-related activities and acknowledges that specific inherent risks are part of these activities, and you accept the risk by participating in the activities. It absolves the defendant of a duty of care towards you regarding your sustained injuries, unless the defendant's conduct is gross negligence. The doctrine is complicated, and it is wise to consult a skilled personal injury attorney. Below is a comprehensive guide to this doctrine.

An Overview of Assumption of Risk

To recover damages in a typical personal injury case, you should:

  • The liable party owed you a duty of care
  • The defendant breached the duty of care
  • The breach led to your injuries

Sometimes, even after proving these case elements, the defendant can introduce the assumption of risk as their defense. In this case, the big questions are whether you assumed the risk of injuries, what California laws say, and whether the liable party’s negligence is a factor. Since it is challenging to know your rights if the assumption of risk is a factor, consider contacting your knowledgeable personal injury attorney.

An assumption of risk is an omission or action that consists of a voluntary experience with any known hazard. The person should have knowledge of the possible danger and determine whether to accept it to be deemed voluntarily. The legal doctrine could hinder or limit victims from seeking compensation for injuries sustained during the activity.

In other words, the assumption of risk doctrine requires a recreational or sports activity participant to accept any known risks related to engaging in the activities. If you participate in inherently hazardous activities, you cannot seek compensation for injuries suffered due to those activities unless specific exceptions are applicable in your case.

For instance, for a plaintiff to receive damages, they must demonstrate gross recklessness or negligence by the liable party or prove that the defendant’s standard of care was unsatisfactory.

The legal doctrine in question aims to establish a balance between allowing people to engage in specific activities and safeguarding them from unnecessary danger. It is crucial for individuals participating in potentially dangerous activities to be fully aware of this legal doctrine to help them make informed decisions before they decide to engage in those activities.

This doctrine is mainly relevant in recreational and sporting contexts; it is vital to determine who must bear liability for any injuries resulting from any incident or accident related to a game or event. Therefore, participants in hazardous activities should understand the risk involved and accept responsibility for any harm resulting from their participation. By law, participants and organizers must ensure that the activities happen in a safe environment that follows all applicable rules and guidelines.

As a player, you can safeguard yourself against potential legal challenges that might arise later by fully understanding the risks of any physical activity and taking the necessary precautions.

This doctrine is divided into two categories, namely:

Primary Assumption of Risk

This category of assumption risk is defined as an individual's acceptance and understanding of any risks that might occur due to their voluntary conduct.

It is commonly used in activities like rock climbing, base jumping, and skiing,, where people understand and embrace the risks of these recreational activities.

Moreover, the primary assumption of risk applies to even daily activities like driving a vehicle.

Secondary Assumption of Risk

Sometimes, the assumption of risk does not entirely prevent a plaintiff’s recovery. Instead, it subjects them to the comparative fault rule, where judges divide accountability among the involved parties, and the plaintiff recovers compensation based on the percentage of their fault. For instance, if the judge determines the victim is 40 percent at fault, they will recover only 60% of the total damages. Therefore, if you suffered $200,000 in losses, you could receive $120,000 in compensation.

The secondary assumption of risk consists of an individual’s acceptance of participating in dangerous circumstances and voluntarily deciding to do so. This category can happen if an individual engages in physical activities, including bungee jumping, skydiving, or other activities with inherent risk.

The validity of this type of assumption of risk requires the individual to understand and know the hazards they might encounter while engaging in this physical activity. They should also voluntarily accept potential hazards without deception or coercion from the staff or owner. The vital factor is that you decided to participate despite understanding the risks involved.

It differs from the primary assumption of risk in that in the latter, a person participates in a physical activity without knowledge of the risk.

What Does Not Constitute An Assumption Of Risk?

The assumption of risk is not applicable if the person:

  • Was reckless by disregarding safety precautions
  • Knowingly hurt someone by stabbing or shooting the plaintiff in the game
  • The injury occurred due to misconduct beyond the scope of what is reasonably foreseeable in recreational or sports activities.

Beyond Sports

Over decades, judges have applied this doctrine as a bar in recreational and sporting settings. Using this theory in other accidents has been limited since the bar to claims that seem extreme to courts.

However, courts have also applied the doctrine to more unique facial circumstances. They have also excluded specific recreational activities, especially if there are policy-related issues.

Judges have also applied this doctrine outside the recreational and sporting setting to certain employment tasks. The claims arise when plaintiffs seek relief against the risks for which they were paid. 

Plaintiff’s Mental State

One myth about this doctrine is that it requires recognizing the associated risk. Whether you were reasonable or not when subjecting yourself to the risk is off the subject. The center of attention is on the defendant’s responsibility for the conduct and the activity’s nature, not your decision.

Your subjective expectations/awareness do not matter. Additionally, whether you knew of the impending risk or consented to excuse or relieve the liable party from the duty of care is irrelevant. 

Does this Doctrine Have Limitations?

The defendant's misconduct that resulted in the injury limits this doctrine. The responsibility is attached if you can prove the defendant increased the risk.

For instance, in the Fazio v. Fairbanks Ranch case, a musician was hurt following a fall from a stage that the liable property owner had constructed in a way that escalated the chances of falling. The stage had a gap between the wall and the stage in the section where the victim fell. The presiding judge ruled that falling off the stage was an in-built risk for every stage performer, and the risk could not be eliminated without changing the nature of stage performance. Consequently, the defendant did not have the duty of care to safeguard the plaintiff. Nevertheless, this doctrine was not applicable in this scenario because it was unclear whether the stage construction increased the musician’s risk of injuries.

Other limitations include the following:

  • The defense does not apply to the defendant’s behavior that violates the law or to the defendant’s willful misconduct or intentional conduct.
  • The defense is not applicable when a law tailored to protect a worker is broken, resulting in an employee’s injuries.

What Happens If You Had Signed the Waiver

Sometimes, an individual or company offering a risky product or service will request that your signature be appended to a written contract. Per that assumption of the risk agreement, you expressly accept to assume any potential injury risks.

These contractual agreements are usually called waiver of liability and assumption of risk agreements. In California, they are enforceable to the degree that they require the person to accept the risk of ordinary negligence.

However, a liable party cannot lawfully expect you to waive your constitutional right to claim damages for:

  • Recklessness
  • Gross negligence
  • Intentional torts

How Does Ordinary Negligence Differ From Gross Negligence?

Ordinary negligence is the failure to exercise the extent of care that a prudent and cautious individual would exercise under similar or identical circumstances.

On the contrary, gross negligence is the absence of any extent of care.

Remember, a liability waiver is enforceable solely to the degree that it excuses you from ordinary negligence.

Should You Sign the Liability Waiver?

The decision to sign the waiver and assumption of the risk contractual agreement entirely depends on you. You must determine whether certain activities are worth the potential risk of surrendering your right to sue if an injury occurs.

However, your lawyer can suggest preventive measures before or after you have signed one. The recommendations could include:

  • Requesting to inspect the establishments and tools before signing the waiver — Knowing the premise’s environment and equipment's condition can help you make an informed decision about the level of safety.
  • Conduct an online search for any existing lawsuits and safety violations — Typically, individuals with terrible experiences post their reviews on sites like Yelp or Google. Search the business’ name or form of business and use key search terms like lawsuit, injury, safety, and death. These terms will be helpful when deciding if the waiver seems to be overreaching.
  • Adhere to the premises’ safety guidelines — While safety regulations sometimes appear too lengthy to read conclusively or burdensome to adhere to, they are tailored to protect you. Additionally, your failure to abide by the regulation might lead to a defendant being held partially responsible for any injury or the business denying your injury claim.
  • Establish whether the organizer has an accident coverage that protects the event participants
  • Some event organizations procure accident insurance that protects participants. Request to view the Certificate of Insurance to verify that the insurance policy is up to date and know the policy’s limits.
  • Ensure your healthcare insurance is current — It is vital to have your medical coverage in order because insurance might not be enough to cover your treatment in case of potential injuries. Medical insurance coverage is a suitable way to ensure you receive medical attention for injuries you might suffer, no matter who the liable party is.

How to Win Your Personal Injury Case If You Had Signed a Liability Waiver

Prevailing in a lawsuit could be challenging if you had signed a contractual agreement waiving liability. Nonetheless, it is not impossible.

To win, you must ascertain if the owner, employee, or operator engaged in gross negligence instead of ordinary negligence.

Moreover, you can win by demonstrating another person's recklessness or deliberate wrongful act.

In some cases, this requires testimony from a professional expert in the industry. In case of catastrophic injury or wrongful death, it might need an accident reconstruction expert.

Photographs, videos, and witness statements could also provide proof to assist you in winning or settling the personal injury claim.

Can a Juvenile Sign a Liability Waiver?

A juvenile can sign a liability waiver if the minor’s guardian signs it. You could also sign the waiver in Golden State on your minor child’s behalf. Consequently, the law permits juveniles to disaffirm contracts they signed before they turned 18.

However, California law allows you to do the following:

  • Make it a lawfully enforceable contract
  • Sign an assumption of risk agreement

Are There Instances When a Liability Waiver is Unenforceable?

Courts can only declare liability waivers invalid if:

  • You were coerced to sign the agreement
  • The liability waiver consists of an essential or public service
  • The liability waiver agreement needs to be more specific and state your surrender of your constitutional rights clearly.

In addition, the court cannot enforce liability waivers that deny any liability for gross negligence. Disclaimers for ordinary recklessness are discouraged but could be valid.

If the court regards a waiver invalid, it will render the liability enforceable, and the waiver will not hinder you from bringing a lawsuit.

The Services are Essential or Public

A judge cannot enforce a waiver if you must sign it to enable you to use an essential or public service. Many liability waiver court cases involve engaging in recreational and sports activities. Judges do not consider the following activities as essential or public services:

  • Horseback riding
  • Skydiving
  • Whitewater rafting
  • Skiing
  • Mountain biking
  • Snowmobiling

Factors that determine whether the service is essential or public include the following:

  • The services are vital and a need for most people
  • It is eligible to be regulated by governmental agencies
  • It could be challenging to locate another person to offer the services
  • The service provider allows any individual to access the service

A waiver in a housing lease is deemed invalid if it involves public services.

  • Perfect examples of public or essential services include commercial airlines and common carriers.

You Unfairly Entered Into the Liability Waiver Agreement

The judge might consider the agreement invalid if you had no meaningful choice of accepting it. For all the parties involved, their bargaining power is essential. However, the waiver could be unenforceable if there are huge discrepancies.

Some of the factors  the court considers include the following:

  • You were unable to obtain the service elsewhere
  • Whether your liability waiver states the potential dangers of the physical activities it covers
  • You required the offered service urgently, and you could not negotiate reasonably.

Instances of indemnity liability waivers that are unenforceable due to these reasons include the following:

  • Contractual agreements for common carriers
  • Employment contracts
  • Agreements for any services offered by public utility firms

The Contractual Agreement Failed To State the Liability Waiver Of the Plaintiffs’sConstitutional Rights Clearly

Waivers must expressly and clearly state to individuals that they are surrendering their rights. Otherwise, the courts could consider them invalid and render them unenforceable.

A valid and enforceable waiver contract form should be unambiguous about your constitutional rights being given up. It should not conceal these disclaimers in formatting tricks.

Factors that can make a waiver agreement unenforceable for being vague include the following:

  • Referred to regulations that do not exist
  • Written in tiny print
  • Were filled with legal jargon
  • Are too lengthy to read before engaging in the physical activity they cover

Accepting that you fully understood the liability waiver after sustaining an injury could make it valid.

The release does not have to be perfect, but you should be adequately apprised of the impact of signing it. While an enforceable release does not have to recite all conceivable risks within the intended scope and the risk that led to your injuries, negligence acts caused by your injuries should be reasonably associated with the objective for which you signed the release. 

How to Release Your Liability When You Sell Your Motor Vehicle

To release yourself from accountability when transferring or selling your motor vehicle, please visit the Department of Motor Vehicles and complete your notice of transfer and release of liability application. In your application, you should include the following:

  • The new car owner’s address and name
  • The last five (5) digits of the vehicle identification number
  • The license plate number
  • The odometer reading on the transfer or sale date

You should submit your NRL application form to the California Department of Motor Vehicles within five (5) days of your transfer or sale.

Contact a Skilled Personal Injury Attorney Near Me

Assumption of risk is a defense in many negligence and personal injury lawsuits. If you have assumed the risk, the defense will reduce or prevent your right to recover damages for any injuries stemming from a negligent defendant. If you have been involved in an accident and do not know where to turn, please contact San Diego Personal Injury Law Firm at 619-478-4059. We can review your case circumstances to fight the defendant’s assumption of risk defense and improve your chance of receiving the compensation and justice you deserve. We can also guide and assist you in averting complications and common pitfalls.