There's no way to make life completely safe. For various reasons, all of us will at some point or another likely do something that involves risk to our well-being. Rather than try to regulate or prohibit every potential dangerous activity, the law instead provides a defense for those accused of injuring others called assumption of the risk. What is the assumption of the risk defense?

Answer: The assumption of the risk defense is an argument available in personal injury lawsuits that allows those accused of harming others to essentially argue, "I warned them that they could get hurt before they did the dangerous thing." If argued successfully, the assumption of the risk defense prevents a recovery in a lawsuit.

In this article we'll discuss how assumption of the risk works, why it works the way it does, and how it can potentially impact your personal injury case.

Assumption of the Risk Provides the Basis for People's Ability to Enjoy Doing Dangerous Things

Take a moment and think about all the dangerous activities that people do as part of enjoying their lives. The most obvious example is skydiving. Why anyone jumps out of a perfectly good airplane is something most people will never understand, but it's obviously dangerous. Now, the community could pass a law and ban skydiving, but most of us figure there's no sense in banning an adult from doing an activity where they're the only one being put in danger.

Of course, with an activity as dangerous as skydiving, there is the potential for serious injury or death. Now, in a less obvious dangerous situation, like say riding on a bus, when the bus operator screws up and injures someone, the injured person can bring a lawsuit to recover the losses incur as a result of that injury. How does the law treat skydiving?

That's where assumption of the risk comes in. The idea is that if you're properly informed that an activity is inherently dangerous and you still agree to do it, you can't turn around and sue the person who provided the activity for hurting you. In other words, you knew that you could be hurt but went ahead and did it anyway.

More commonly, this doctrine comes into play at attractions like rides, trampoline parks, or even ax throwing venues. Most of those places have participants sign waivers that clearly spell out the risks and disclaim any liability if someone is injured as a result of the risks inherent to the activity.

For example, if you take a child to a trampoline park and the child jumps of the trampoline and breaks a leg, that's the type of injury that's inherent in jumping on a trampoline. It wouldn't be just to hold the operator responsible after the fact, when the parent understood the risks they allowed their child to take by going to the park.

With all of that being said, assumption of the risk doesn't mean those who provide potentially dangerous services have a get-out-of-jail free card. Let's discuss a bit about when assumption of the risk doesn't necessarily apply.

Assumption of the Risk Doesn't Mean That Operators of Dangerous Activities Are Never Responsible for Injuries

Assumption of the risk rests on the idea that you:

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

Presumably, the waivers that most providers have people sign before engaging in potentially dangerous activities clearly spell out these risks, so that it's crystal clear exactly what risks you're agreeing to. Texas courts generally require the risks you're taking on to be spelled out, preferably in Big, Bold Writing. They must also be specific. If you read over most waivers, they're overly broad, with language like "you assume all the risk and cannot sue the service provider for any harm, ever." A waiver that broad is unlikely to hold up in court. In that case, it will be up to the service provider to come up with some evidence that they informed you of the risks ahead of time.

Another area of dispute when attorneys raise the assumption of the risk defense is that it doesn't necessarily cover the behavior that led to the injury. Let's unpack that a bit by looking at an example.

Let's say you take your child to a trampoline park like we discussed before. Your child is jumping up and down, when a light fixture falls from overhead and injures your child. You bring a lawsuit against the establishment to cover your losses. The trampoline park's attorney tries to argue assumption of the risk, because you knew that your child might be injured jumping on a trampoline, but allowed them to do so anyway, so it's not the trampoline park's fault.

You can probably see the problem with invoking the defense in this situation. Jumping on trampolines has nothing to do with light fixtures crashing down on children. The injury didn't result from the dangerous activity you permitted your child to engage in, rather it arose from the fact the trampoline park didn't maintain their property. In this case, an assumption of the risk defense likely fails because the alleged negligence doesn't have anything to do with the dangerous activity.

The improper use of the assumption of the risk defense is a fairly common defense tactic. The defense is betting that you don't have an attorney who can see through their argument, or that the attorney you do have isn't skilled enough to beat it in court. It's also a bit of a freebie argument for defense attorneys; if it works, you lose your case, and if it doesn't come off, then it doesn't really harm their ability to defend the case.

The Assumption of the Risk Defense Can Be Defeated

The key to beating an assumption on of the risk defense is gathering quality evidence and knowing this area of the law. An experienced attorney will quickly assess the defense before they even take your case on. If it looks like assumption of the risk applies to your case, they'll tell you so and suggest appropriate action. If it doesn't, they'll be aware the other side is likely to bring it up and prepare accordingly.

Grossman Law Offices has been representing personal injury victims for more than 30 years. If you've been injured or lost a loved one in an accident, feel free to reach out to us, anytime, for a free case evaluation.