Would you be surprised to learn that Americans are some of the biggest risk takers on Earth? It makes sense, too! Whether risk-taking is a result of genetics or a result of American society’s influence on its citizens, taking risks isn’t always so easy in what’s also considered one of the most litigious nations.
That’s why an important caveat exists for risky business: the assumption of risk.
If you get injured while partaking in a risky activity with a business, then that business might be held responsible for your losses. One of the most important defenses to tort liability: assumption of risk might come into play, though, if the injured party signed a waiver acknowledging the risks associated with the activity before the accident.
Are you feeling confused? Learn everything you need to know about one of the most crucial defenses to tort liability: assumption of risk and how it might apply to your situation below.
What is the Assumption of Risk in a Personal Injury Claim?
If your business offers a product, service, or experience, then you have a legal obligation to ensure that you provide for the reasonable care of your paying customers. Failure to inform your customers about known risks or dangers revolving around your experience or product could potentially amount to legal negligence, which we will get into more detail on below.
For now, what you need to know is that the assumption of risk on the customer’s part could help protect you legally in the even that someone does get hurt. An assumption of risk is a verbal or written acknowledgement of the known risks and dangers involved with your specific service, experience, or product.
The assumption of risk can be used as a valid legal defense strategy if a lawsuit comes up after a personal injury happens. In these situations, you’d argue that the injured patron knowingly and willingly assumed the risks of the experience, product, or service before taking part in it. If a customer assumed this type of risk, then they won’t be able to collect damages.
How is Negligence Defined?
As we mentioned previously, it is possible for a business to get held legally liable for someone’s injuries if the business or its employee’s negligence led to the accident. By law, negligence occurs when fail to uphold your legal duty to provide for your customer’s care. You can breach this duty of care in multiple ways including (but not limited to):
- Not informing customers about the known dangers of an experience
- Failing to incorporate safety procedures or gear
- Not following safety protocols
- Reckless employee actions
- Failure to monitor customers during an experience
- Ignoring a known safety hazard.
If a plaintiff can prove that you or your business was negligent and caused an injury, then you could be held financially responsible for the losses associated with that accident.
Is it Possible to Sue a Defendant Even if I Signed a Contract Not to Sue Them?
One of the number one ways businesses who allow customers to engage in risky activities or purchase risky products protect themselves is to create a contract regarding the assumption of risk. The contract outlines the known risks and dangers, and a signature from the paying customer allows them to proceed with the transaction while also agreeing not to sue in the event an accident happens.
In most cases, this contract protects the defendant from getting sued even if the plaintiff gets injured later. There are a few exceptions to this rule, though. The defendant that signed the contract might still be able to seek out a lawsuit if one or more of the following elements are present:
- If your employer intentionally caused an injury to a customer
- If the contract was signed under duress
- If the patron didn’t have the capacity to understand the contract when they signed it
- If the contract is in violation of public policy.
If you think you might have the legal basis to seek out a claim despite signing a contract, then it’s important to consult with a lawyer about your situation. If possible, then bring a copy of the contract with you to your consultation.
What is Express Assumption of Risk?
An express assumption of risk happens when the patron expressly accepts the risks of an experience or activity in writing. This comes in the form of a contractual agreement and legal waiver of the patron’s right to sue the defendant in the event an injury or accident occurs. This waiver should include the following elements:
- A detailed list of the known risks and hazards
- A section that describes the patron will assume the risks of the activity
- Any warnings about previous health conditions or age restrictions
- A statement that says the patron knows and understands the risks
- The patron’s signature
In its final form, this express assumption of risk proves that the plaintiff understands the risks associated with the activity and that they’re willingly assuming the risk in order to participate.
What is Implied Assumption of Risk?
An implied assumption of risk is much more complicated. This type of assumption of risk does not involve a written agreement. In most cases, an implied assumption of risk happens verbally or it is simply assumed.
For instance, you might offer a trampoline park service to your paying customers. Since jumping on a trampoline is a known hazard for younger children who are still growing, you might have your employees disclose this fact to paying customers who are bringing children to the park that are under a certain age. That customer might shake their head “yes” to acknowledge your statement, but later their child winds up hurt after jumping on the trampoline. You’ll have to rely on that implied head nod as your legal defense strategy.
As you’d imagine, using implied assumption of risk as a legal defense strategy is much more difficult than using expressed assumption of risk. If it’s possible, then it’s always better to get an express assumption of risk before engaging in a risky activity that you could later get held liable for.
What Statements or Conduct Cannot be Waived by an Implied Assumption of Risk?
There are certain types of conduct and actions that can never be waived through implied assumption of risk. For instance, legal liability can never be waived for criminal activity committed against the plaintiff. It’s also not possible to create an implied assumption of risk for unforeseeable behavior or events. Finally, there are times in which voluntary behavior could be considered involuntary based on the circumstances of the plaintiff.
In What Types of Cases Does Assumption of Risk Occur?
The assumption of risk defense is often brought up in the following types of cases and circumstances:
- Inherently dangerous activities (snowboarding, skateboarding, experiences with wild animals)
- Extreme sports activities
- Premises liability cases
Should I Hire a Lawyer to Defend Against an Assumption of Risk?
Whether you’re considering using the assumption of risk as a legal defense strategy during a lawsuit or you need to defend yourself against this defense strategy to get the compensation you deserve, it makes sense to hire a quality legal expert to help represent your interests. Assumption of risk lawsuits often involve some serious injuries, so the financial repercussions of losing your claim alone should be enough to encourage you to hire a lawyer.
Aside from that, your lawsuit could be your one shot at justice. Appealing a set verdict is much more difficult than preparing for your day in court in advance.
Defenses to Tort Liability: Assumption of Risk and How it Could Apply in Your Case
Are you currently facing a lawsuit after a patron, eventgoer, or participant in your program got hurt? If so, then it’s important to consider one of the top defenses to tort liability: assumption of risk. You should also get informed about other potential defense strategies, too, like using comparative negligence to reduce your liability. Considering the severity of the situation, it’s in your best interests to hire a lawyer to defend yourself against the case.
Hiring a quality lawyer can not only help you in this personal injury lawsuit situation, but it can also provide invaluable legal advice moving forward. If you plan to continue doing risky business, then you need to have legal documents in place that protect you.
Are you interested in speaking with a lawyer in Georgia about your situation? Leave your contact details on our online form now to get in touch with our top-tier lawyers about your case.