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How Does The Assumption Of The Risk Defense Work Under Texas Law?

How The Assumption Of The Risk Defense Works Under Texas Law.

After we've done something a little unwise, we've all probably looked in the mirror and said, "What was I thinking?" Assumption of the risk is a legal doctrine, dating back to English common law, that essentially asks us that same question. Just as it sounds, assumption of the risk allows a defendant in a personal injury or wrongful death case to argue to a jury that you knowingly and voluntarily assumed the risks associated with whatever you were doing when you were injured. Therefore, the argument goes, the wrongdoer owes you nothing.

An easy example is skydiving: If something goes wrong during your skydiving jump and you are injured, and if you sue the skydiving company for compensation for your injuries, the company will claim that you voluntarily jumped from the plane fully knowing just how dangerous skydiving is. Further, the skydiving company probably had you sign something that explained in BOLD AND CAPS WORDS that you could get seriously injured after jumping from an airplane. You knew you were about to jump from a plane and you jumped willingly: you assumed the risk of the injuries related to skydiving.

As a technical matter, this defense is part of "comparative fault," meaning, it's a subset argument of the broader point that you helped injure yourself and thus should be denied recovery.

In this article, attorney Michael Grossman explains how the Assumption of the Risk Defense works in a Texas personal injury case.

Questions answered on this page:

  • What is the Assumption of the Risk defense according to Texas law?
  • What are some examples of Assumption of the Risk?
  • What does it mean when something is "inherently dangerous"?
  • How does an experienced Dallas-based attorney help me win?

Why there can be less, or even no, recovery for the injured person.

If the person who injured you successfully asserts assumption of risk as a defense in your lawsuit against them, you will potentially recover nothing. Assumption of risk can be a total bar to your reimbursement. The reason: in theory, if you assume the risk of injury, the wrongdoer no longer owes you a duty of care. Without a duty of care, and a breach of that duty, there can be no negligence.

For more on how negligence works, make sure you visit our comprehensive explanation of negligence.

To fully assume a risk of being hurt, you have to:

  • Know the level of risk involved in performing an activity, and
  • Voluntarily do it anyway.

In other words, it isn't enough that something was dangerous in retrospect. At the time you did something, you must've had enough information at your disposal to make an informed decision that it was a conscious decision to go ahead with it. In the parachuting example, most people would agree that everyone who jumps out of a plane must know that it's inherently dangerous. Nonetheless, there are a lot of activities that most people are unaware of the risk and need a more informed person (and it always must be the defendant) to explain to us what's about to happen.

Let's say you want some plastic surgery on your nose. Unless you're a doctor yourself, you might assume that there's some risk associated with surgery, but you don't know how much. Before your doctor performs surgery, she should lay out exactly what could happen: your nose could look weird, you might sustain damage to nerves in your face, you may never even wake up from surgery, etc. At this point, it's your choice to go forward with the cosmetic procedure. Unless your doctor does something wrong, if one of the inherent risks to surgery causes you harm, you've "consented" and can't sue the doctor for medical malpractice.

The question is: did you fully appreciate the risk of what you were doing?

After all, just because you assume a risk, does not mean you assume all risks. If you ride with a friend knowing he has been drinking alcohol, you assume some risk of the injuries associated his drinking and driving. But if your drunken friend's car has defective tires on it that you don't know about, and the defective tires cause an accident, you did not knowingly assume that risk.

Defense attorneys usually will attempt this defense because it is a low risk high reward defense to argue. However, be that as it may, it is still a defense that can be argued and an experienced attorney will be able to make sure to address this defense with evidence.

Grossman Law Offices has been representing personal injury victims for 25 years. Today Grossman Law Offices represents men, women, and children injured in all kinds of mishaps. If you are involved in a personal injury case and need to talk to a lawyer, call us today at (855) 326-0000.

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