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Jonathan Rosenfeld

February 8, 2022

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If you voluntarily assumed the risk of a known danger, then you may be prohibited from recovering damages if you sustain personal injury from that same risk.

What is Assumption of Risk in a Personal Injury Lawsuit?

Under federal and state rules of civil procedure in a personal injury case, defendants may raise an affirmative defense of assumption of risk-either express assumption or implied assumption.

Assumption of risk means a person can’t recover when an injury occur if the injury victim knowingly exposed themselves to the risks involved. It acts as a liability waiver of sorts.

In other words, the defendant is arguing that since you knew the risks and proceeded anyways, you should be allowed to recover in a personal injury case for the damages that followed.

The defense of either implied assumption of risk or express assumption is often used in premises liability cases, medical cases, and other contexts.

In order to procced on an assumption of risk affirmative defense (express assumption of risk or implied assumption), a defendant must offer the following points in a personal injury case:

  • The plaintiff knew of the specific risks involved or risk involved;
  • The plaintiff willfully and voluntarily assumed the risk through words, intimations, conduct, or other behavior.

The plaintiff can always shoot back with comparative and contributory negligence in personal injury suits to quash the risk doctrine defense. However, this can be hard to do once the defendant has made its basic case.

Contact our law firm for a free consultation on the assumption of risk doctrine and how an attorney client relationship may help you defeat it in court. The following sections review the assumption of risk defense in more detail.

What is an Express Assumption of Risk?

Express assumption of risk is a primary assumption. It occurs when the victims knew exactly what the potential risks where and voluntarily exposed themselves anyways.

The express assumption of risk defense applies when the plaintiffs expressly assert themselves through written contract, written agreement, or other means. Then, injury victims cannot hold the defendant responsible for personal injuries if the risk exists and the inherent risk occurs.

Defendants normally use a release provision to trigger express primary or secondary assumption of risk.

They typically cover and relate to known risks like an inherently dangerous activity or dangerous activities (i.e. bungee jumping, sports games, trampoline park, etc.), dangerous situation (guard dog, bad staircase, etc.), or an overly dangerous product (like medications)

If the injured person signs a document or expressly assumes the risk another way and then suffered injuries, they may not be able to recover compensation.

This actually may remove the legal duty a defendant owed the injured party and erase liability for the victim’s injuries even if the defendant’s negligence (comparative negligence or contributory) existed.

Our law firm, Rosenfeld Injury Lawyers, has years of experience fighting back risk defenses including release provision disputes. Contact us for legal advice and a free consultation today to review your options and paths to compensation under Illinois law.

What is an Implied Assumption of Risk?

Implied assumption of risk applies when a plaintiff acts understanding the possible outcomes and despite possible the risks. If the plaintiff gets hurt, they cannot hold the defendant legally liable and recover damages because the assumption of risk applies and bars their recovery.

As mentioned above, this is normally the case with a dangerous activity like bungee jumping or driving at reckless speeds. In both of these circumstances and even more, it is fair and just to prohibit unjust windfalls of a jury award or insurance settlement because the victim assumed the risk.

The defendant should not be held liable when the plaintiff accepted the risks through their implied conduct.

If left unchanged, implied assumption of risk may limit the legal options of the injured party or act as a complete bar to pursuing damages for the plaintiff’s recovery.

Talk to the experienced legal team of Rosenfeld Injury Lawyers LLC before that happens so that you can recover in court.

Consequences of Assumption of Risk for Your Lawsuit

If left unchanged, assuming the risk of an act or accident can have disastrous consequences on your legal rights and recovery.

Take a look at just some of these considerations:

  1. Risk assumption can eliminate your ability to get a jury award or insurance benefits.
  2. Assumption of risks can prohibit you from seeking justice from defendants with deep pockets.
  3. Express or implied risk assumption can leave you without any help for your medical bills, damaged property, missed work, bodily pain and suffering, disability, and other effects.

Remember, there are steps you can take to avoid these negative outcomes. The experienced lawyers in our law firm can walk you through how to do this step-by-step. Call us now for case review other important topics relation to assumption of risk in a personal injury case.

How Does Contributory or Comparative Negligence Affect My Case?

Comparative and contributory negligence both imply that someone else was to blame for an accident other than the defendant. This can mean multiple defendants, or it can mean that the plaintiff was to blame.

Laws differ on how they handle contributory or comparative fault. In Illinois, plaintiffs can still recover if they were fifty percent or less responsible for the events.

However, defendants may use your comparative negligence (especially if you were grossly negligent) to suggest you should not recover at all. To this argument, point out that you were not primarily responsible for the accident and didn’t assume the risk.

Thus, you are still allowed to recover under Illinois law. Stick to your guns and stand up for yourself.

How Can a Lawyer Help Mount an Assumption of Risk Rebuttal?

Most defendants will try and argue that you assumed the risk. You need to prepare for this eventuality.

A lawyer can help you do this in a couple of important ways, like these:

  • Gather evidence that there is no explicit evidence of assumption like words, signatures, or other acts of affirmation.
  • Argue that no part of your conduct could amount to implied consent for the risks that were encountered.
  • Put forward that even if you assumed some risks, you did not assume any part of the risks that actually manifested and injured you.
  • Try and see if the defendant intentionally lied or hid risks from you before the accident.

These are just some of the ways that a good attorney can stand up for you if the defendant tries to say you assumed some of the risks that caused you harm. To learn more about a complete defense to this legal maneuver, talk to our legal experts now by calling us or using the contact form.

Speak with a Personal Injury Lawyer if You Were Harmed in an Accident

Rosenfeld Injury Lawyers has represented thousands of victims and their families in personal injury cases.

Over that time, we have encountered and defeated all kinds of meritless defenses from negligent defendants including assumption of risk, both implied assumption and express assumption of risk.

Schedule a free consultation with our personal injury law firm to discuss how you can use every legal doctrine under Illinois law to combat the defendants’ objections and obtain compensation. Our services are free to you if we do not return an award or settlement.

Contact us now to start the process of recovery and see what you may be entitled to obtain. Our offices are open and there is always someone you can talk to 24/7 at (888) 424-5757.

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