What is “Assumption of Risk” and how much does it matter in your Personal Injury Case
The world of litigation is strange, full of twisting paths, ready to trap the unwary. If you or someone close to you has been sued then you know the trauma caused by litigation. It is expensive, it is time consuming, it is emotionally harrying. If on top of all this you’re not even sure what’s going on then the psychological impact doubles. Litigation can hit anyone at anytime and anyplace. It helps to understand some basic legal terms and the options available to you in terms of defense.
We are talking here about personal injury cases. A personal injury claim involves legal action against an entity (person, business, agency, government) who has by some negligent action caused mental, emotional or physical injury to another entity. For the sake of clarity, and for help with the examples presented later on in this article, the plaintiff is the person who is suing another entity while the defendant is the person who allegedly caused the injury.
In this article we will be talking about the options available to the defendant in terms of legal arguments for defense. If the defendant’s behavior has not been reckless or negligent and therefore there can be no substantial evidence linking the plaintiff’s injury to the actions of the defendant then it is up to the defense attorney to provide said evidence and the case is fairly straightforward. The complications arise when there is negligent behavior on the part of the defendant. In this case the defense attorney has to find a way to counteract the elements of the plaintiff’s case which involve an injury and a direct link from the injury to the actions of the defendant.
Some common approaches used by the defense attorneys in such cases are:
1. Comparative negligence which refers to the plaintiff’s actions also being taken into account and found negligent.
2. Assumption of risk which refers to the plaintiff being aware of the risks associated with his/her actions and still going ahead with the actions that caused/contributed to the injuries.
Assumption of risk can be “express” which is in the form of a written contract or “implied” which is in the form of the plaintiff’s actions or statements that might suggest he was aware of the risks involved. In case of express assumption of risk the plaintiff cannot sue for negligence on the part of the defendant. In case of implied however, the attorneys on both sides can play around a bit because they have to take the jury inside the mind of the plaintiff.
Personal injury cases in Florida follow the same principles. In case of express assumption of risk the plaintiff has a weak case and the defendant is not held responsible for the claims. For implied assumption of risk, the Florida court generally follows comparative negligence rules. This means that in the absence of a written contract in which the plaintiff accepts the risks of engaging in a particular activity, the court will judge the case on the basis of the negligence showed by both parties and the damages paid to the plaintiff will be dispensed according to the percentage of negligence determined by the jury.