Stephen Schultz | June 6, 2024 | Personal Injury
Assumption of risk, not to be confused with assumption of liability, is an ‘affirmative defense’ to a personal injury claim. This defense only applies to certain types of personal injury claims.
The way it works is that the plaintiff files a personal injury claim, and the defendant responds with an assumption of risk defense. Although the assumption of risk defense is sometimes successful, there are ways to counter it effectively.
Assumption of Risk Definition
What is assumption of risk? To win an assumption of risk defense, the defendant must prove certain facts:
- The plaintiff knew of the specific risk involved in the activity. This means actual knowledge rather than ‘should have’ known. Nevertheless, the obvious danger in an activity might lead to a conclusion that the plaintiff did, in fact, know of the risk.
- The plaintiff voluntarily engaged in the dangerous activity. In other words, the defendant did not coerce or pressure the plaintiff into participating.
- The plaintiff appreciated the severity of the potential harm and the risk that the harm would occur. As with the first element above, it’s not enough that the plaintiff ‘should have’ appreciated the magnitude of the risk.
To win an assumption of risk defense, the defendant must prove all three of the foregoing facts.
When Does the Assumption of Risk Defense Arise?
The assumption of risk defense has a valid purpose. Without it, for example, a business operator could not afford to offer activities that subjected customers to danger.
Circumstances That Might Trigger an Assumption of Risk Defense
The following circumstances represent typical scenarios that might trigger an assumption of risk defense if a personal injury claim arises:
- Horseback riding
- Skiing or snowboarding
- Skydiving or bungee jumping
- Scuba diving
- Rock climbing or mountaineering
- Entering a property with a “Beware of Dog” sign
- Trespassing on private property
- Working in a hazardous occupation with known risks
- Using a product with a clear warning label of potential dangers
The success of an assumption of risk defense is not inevitable in any of these activities. It all depends on the specific details of the case.
The Burden of Proof for an Affirmative Defense
Normally, the plaintiff bears the burden of proof in a personal injury claim. Since the plaintiff is the one asserting the claim, the plaintiff must prove it. In an affirmative defense, however, the defendant is asserting the claim. Consequently, the defendant must prove their defense (not the entire claim, only their affirmative defense).
Assumption of Risk vs. Contributory Fault
Assumption of risk is not the same as contributory fault. In contributory fault, the defendant argues that the plaintiff contributed to the cause of the accident-–perhaps by driving at night with their lights off, for example.
In assumption of risk, the defendant argues that the plaintiff agreed to participate in a dangerous activity before the activity occurred.
Waivers of Liability
Most of us have signed a waiver of liability at some point. Perhaps your gym contract includes one. Even the fine print on tickets for baseball games sometimes includes an assumption clause.
Under many circumstances, however, a waiver of liability is likely to be ineffective. Ultimately, a waiver of liability is evidence of assumption of risk, but not necessarily proof.
You Only Pay Legal Fees if You Win Compensation
If you hire a lawyer to represent you in a personal injury claim, they will probably seek a contingency fee arrangement. Under this payment system, you pay no attorney’s fees upfront and none, ever, unless you win money.
Contact Our Personal Injury Law Firm in Missouri, MO
If you’ve been injured, please contact the attorneys at Schultz & Myers Personal Injury Lawyers at the nearest location to schedule a free consultation, we proudly serve all throughout Missouri, including St. Louis County and Boone County and we have offices in St. Louis, Ladue, Columbia, Creve Coeur.
Schultz & Myers Personal Injury Lawyers – St. Louis Office
1430 Washington Ave Ste 225
St. Louis, MO 63103
(314) 444-4444
Schultz & Myers Personal Injury Lawyers – Ladue Office
9807 S 40 Dr
St. Louis, MO 63124
Schultz & Myers Personal Injury Lawyers – Columbia Office
28 N 8th St # 502
Columbia, MO 65201
Schultz & Myers Personal Injury Lawyers – Creve Coeur Office
999 Executive Pkwy Dr #205
Creve Coeur, MO 63141
