If you are attempting to earn a payout of damages after a personal injury to yourself, you can be sure the negligent party or parties that caused the harm will do everything possible to avoid paying anything. One of the defenses that may be raised in a personal injury case is assumption-of-risk. This type of defense will essentially try to pin blame on you, the victim, for your own injury.
The central argument in an assumption-of-risk defense is that the accident victim participated in an activity or ventured onto property in which he or she understood there was an inherent risk. A situation in which assumption-of-risk is often applied is at a sporting event, most commonly a baseball game. As much as teams install netting in and around the field of play, a foul ball or home run can still find its way into the stands and make contact with spectators, and they are expected to be aware of this risk of injury when they choose to attend a game. In fact, the back of most sporting event tickets includes language regarding assuming the risk of injury.
Express Assumption of Risk
A defendant in a personal injury case will almost always raise the assumption-of-risk defense when the victim put in writing his or her acknowledgment of the possibility of personal harm. When this acknowledgment is in writing, such as waivers that accompany skydiving or other extreme sports or activities, it is considered express assumption-of-risk. If a defendant successfully uses this defense against you, it is likely you will not receive any payout.
Implied Assumption of Risk
The implied assumption of risk is harder for defendants to prove. Through your words and actions, they will attempt to show that you were cognizant of the risks of your choices and proceeded anyway. For example, if you participate in a pick-up tackle football game, you are understood to have consented to being knocked to the ground by an opposing player, which can cause sprains, broken bones, or concussions.
Proving Assumption of Risk
Luckily for you, the burden of proof is on defendants to prove assumption of risk. The defendant must properly show that the danger in a given situation was obvious. As we explained above, it is more difficult to prove express than implied assumption of risk. Michigan and Illinois are both comparative negligence states, which means damages are awarded to victims relative to the amount of fault contributed by each party.
Also, the defendants must show that the risk of the injury that occurred is the same as the risk that they are alleging you have assumed. Using the same example of the pick-up football game, if, for instance, you are injured because the ground is not well-maintained, that might not be considered a risk that would be reasonable to assume.
Lastly, defendants cannot utilize the assumption-of-risk defense if they were “grossly” negligent — or unreasonably negligent. In the case of the skydiving example mentioned above, if your parachute doesn’t open because the company didn’t bother to put parachutes in the packs, that would likely be considered gross negligence which you did not agree to when you signed the waiver.
Conclusion
Assumption of risk can be difficult to prove in court, but if a defendant believes they can employ it as a defense, it will likely be used. If you need a zealous advocate on your side in a personal injury case, we are only a phone call away. Call us today at 844-835-2993 for a free consultation.
Carla D. Aikens, P.L.C.
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