Understanding Assumption of Risk
Gregg Hollander | January 28, 2023 | Personal Injury
The assumption of risk is a legal doctrine used as an affirmative defense in personal injury cases. With assumption of risk, the defense tries to escape liability by shifting some or all of the blame for the injury onto the victim. However, the assumption of risk is not a complete bar to liability for a personal injury claim.
What Is Assumption of Risk in Personal Injury Cases?
When a party is responsible for causing an injury, Florida tort laws provide a legal cause of action for victims to recover compensation for damages. Compensation can include economic damages, including medical bills and lost wages. An injured party can also recover compensation for non-economic damages.
However, the defendant might allege the victim assumed the risk of injury when they engaged in activities or conduct that led to their injury. The argument is that the person knew there was a risk in engaging in the conduct or activity. Yet, the person willingly assumed the risk by consciously continuing the conduct or activity.
Assumption of risk has historically been used to avoid liability. If a victim assumed the risk, they would be barred from recovering compensation for damages if they were hurt.
However, contributory fault has replaced assumption of risk in many personal injury cases. If the person contributed to the cause of their injury, it impacts the amount they can receive for damages.
What Types of Assumption of Risk Can an At-Fault Party Claim in Florida?
Assumption of risk typically falls into one of two categories.
Implied assumption of risk occurs when a person willingly engages in an activity knowing the risk of injury involved with the activity. For example, putting on skis and signaling to a boat you are ready to water ski could indicate an implied assumption of risk.
Express assumption of risks occurs when a person signs a release or waiver of liability. The person acknowledges the risk of injury and specifically releases the other party from liability. Waivers are often used when someone engages in activities such as bungee jumping, trampoline parks, and skydiving.
The Florida Supreme Court has ruled in other cases that express assumption of risk should not expand beyond injuries from contact sports and contracts not to sue.
Implied or expressed assumption of risk does not release parties from all liability for injuries and accidents. Assumption of risk typically applies to foreseeable risks associated with a specific activity. If the party is negligent or there are unforeseeable dangers, assumption of risk might not apply.
Florida’s Comparative Negligence Law and Assumption of Risk
The courts in Florida generally do not recognize implied assumption of risk. Instead, Florida’s comparative fault law holds victims accountable if they contribute to the cause of their injury.
Florida currently operates under a pure comparative fault law. If you are partially to blame for your injury, your compensation is reduced by your percentage of fault. Some states place a bar to receiving compensation of 50 or 51 percent, but Florida does not.
Therefore, suppose a jury awards you $500,000 for a car accident. However, the jurors decided that you were 60% to blame for the cause of the car crash. Therefore, instead of receiving $500,000, you would receive $200,000 ($500,000 less 60% for your fault).
Comparative fault is based on the reasonable person doctrine. The jurors compare your conduct to what a reasonable person would have done in the same situation. If your conduct falls short of the reasonable person standard, you can be held liable for your portion of fault for causing your injury.
Can a Boca Raton Personal Injury Lawyer Help if I Am Blamed for Causing an Accident or Personal Injury?
Insurance companies understand how to use legal defenses to personal injury claims, including comparative fault and assumption of risk. Therefore, an insurance adjuster might try to convince you that you were partially to blame for your accident. Because of your fault, you are not entitled to compensation for all damages.
An experienced Boca Raton personal injury attorney is prepared to fight allegations of assumption of risk and contributory fault. Your lawyer investigates the cause of your injury to gather evidence proving causation and liability. A personal injury lawyer also helps you avoid mistakes that could hurt your chances of receiving fair compensation for an injury claim.
You can protect yourself by never admitting fault for causing an accident or injury. Do not apologize or say that you are unsure whether you could be at fault.
It is not in your best interest to provide a statement or talk with an insurance adjuster on a recorded line. Instead, refer the insurance company to your Boca Raton personal injury lawyer to handle all matters related to the accident claim.
Contact Our Personal Injury Law Firm in South Florida
If you’ve been injured in an accident, please contact our experienced personal injury lawyers in Florida at Hollander Law Firm Accident Injury Lawyers to schedule a free consultation today. We have three convenient locations in Boca Raton, Fort Lauderdale, and West Palm Beach.
We proudly serve Palm Beach County, Broward County, and its surrounding areas:
Hollander Law Firm Accident Injury Lawyers – Boca Raton Law Office
7000 W Palmetto Park Rd #500
Boca Raton, FL 33433
Hollander Law Firm Accident Injury Lawyers – Fort Lauderdale Law Office
200 S.E. 6th Street #203
Fort Lauderdale, FL 33301
Hollander Law Firm Accident Injury Lawyers – West Palm Beach Law Office
319 Clematis St #203
West Palm Beach, FL 33401