In any negligence claim, there must be a clear connection between the liability
of the defendant for the injury and the injuries that the plaintiff has
obtained. This means that the defendant had a duty of care to prevent
the plaintiff's injuries. The assumption of risk doctrine attacks
the first part of the argument by showing the defendant is not liable
for their injuries, and is used in cases where the plaintiff has received
a personal injury.
How is assumption of risk proven?
The defense can claim that the plaintiff assumed the risk of injury when
they performed the dangerous task and knew that the task may cause them
to be injured. If this can be proven, then it means that the defendant
had no responsibility for the injury and cannot be held liable.
There are three different ways assumption of risk applies:
- Primary assumption of risk is when the risks for participating are completely
obvious to any reasonable person and where the risk of bodily harm is
integral to participation in the activity.
- Express agreements that occur when someone signs their name of a document
or release that indicates they understand there are risks and free the
defendant from obligations of care.
- Implied assumption of risk occurs when the plaintiff's consent to assume
risks is implied from their actions, based on reasonable expectations.
In order to prove that the plaintiff assumed a risk in their actions, it
must be shown that the plaintiff had enough knowledge of the potential
risk to know that there was a possibility to receive injuries, and that
the plaintiff voluntarily agreed to participate in the activity even though
they were aware of the risks.
However, assumption of risk cannot be used in
workers' compensation claims to prevent a plaintiff from obtaining compensation from an employer. Employees
that have received an injury due to their actions are thought to be doing
so without choice since their livelihood relies on this work. An employer
has the responsibility to ensure that their workers are properly taken
care of when conducting their business.
If you are thinking about filing a workers' compensation claim against
your employer, they cannot use the assumption of risk doctrine to deny
you payment for injuries caused on the job. Looking for more information?
Contact Katz, Leidman, Freund & Herman to learn about how we can help.