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. 

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 Schultz & Myers Personal Injury Lawyers at the nearest location to schedule a free consultation today:

St. Louis, MO Law Office
1430 Washington Ave Ste 225, St. Louis, MO 63103
(314) 444-4444

Ladue, MO Law Office
9807 S 40 Dr, St. Louis, MO 63124

Columbia, MO Law Office
28 N 8th St # 502, Columbia, MO 65201

Creve Coeur, MO Law Office 
999 Executive Pkwy Dr #205, Creve Coeur, MO 63141