An overview of the defense known as consent, and how it impacts Texas personal injury claims:
In our continuing series on damages, we're going to examine how the concept of consent can be used to try to bar your personal injury claims.
Questions answered on this page:
- How is the consent defense used in Texas personal injury cases?
- What are some examples of consensual agreements?
- Is the consent defense commonly used by defendants?
- How does an experienced Dallas-based attorney help me win?
How defendants use the consent doctrine against you.
As we discussed with the competitive sports doctrine, when individuals engage in risky conduct, the law doesn't always allow them to recover money from those who caused their injuries. The idea is that grownups can make decisions about their wellbeing, but they're not allowed to then try to hold others responsible when their abnormally risky behavior leads to injuries.
The consent doctrine involves a knowing and express written or oral agreement to undertake what has been explained, or should have been obviously, a dangerous activity. One easy example most people are familiar with is a willingness to undergo a medical procedure. Before any non-emergency surgery, doctors have patients sign consent forms that (supposedly) explain the risks associated with the procedure. Again, the idea is that a patient should knowingly undergo surgery with some idea of what could possibly happen.
There isn't much "case law" (i.e., reported cases) on this area as concerns typical personal injury scenarios---probably because proving consent is extremely difficult. Typically, for a consent argument to be workable in court, the defendant would have to show something along the lines of the following examples:
- A consent form signed by an amateur skydiver with the skydiving company explaining the many risks associated with the activity.
- When two men engage in a fistfight consensually, meaning one wasn't simply defending himself against the other.
The typical defense lawyer will know that proving something like this is profoundly difficult. However, an inexperienced plaintiff's attorney might be bullied into accepting a much lower settlement or refusing to take your case to trial out of ill-founded fear.
It's time to call an attorney.
Grossman Law Offices has been representing clients for 25 years. Our attorneys are competent and experienced in handling your personal injury case. Contact our office at (855) 326-0000 to receive a free consultation.
Related Articles for Further Reading:
- Personal Injury Defenses: Act of God
- Personal Injury Defenses: Assumption of the Risk
- Personal Injury Defenses: Failure to Prove the Elements of the Case