top of page
  • Writer's pictureRobert Schuerger II

Assumption of Risk in a Personal Injury Case – Comprehensive Guide

A person injured by others' negligence or intentional wrongdoing can file a lawsuit against responsible parties and pursue compensation for the damages they suffered.


However, the individual or entity that victims accuse of negligence or wrongdoing has the legal right to defend themselves.


One of the legal defenses they can use is the assumption of risk. It is a legal doctrine that limits claimants' opportunities to take legal action and recover compensation.


The assumption of risk applies in cases where victims willingly took the risk of engaging in the act that caused the injuries.


Therefore, anyone planning to file a personal injury lawsuit against another individual should understand what the assumption of risk is and how this legal doctrine may affect their rights to get compensation for their expenses and losses. They also understand the burden of proof in a personal injury case.


What Is the Assumption of Risk Defense in Personal Injury Lawsuits?

What Is the Assumption of Risk Defense in Personal Injury Lawsuits?


Essentially, the assumption of risk is a defense that defendants in a personal injury lawsuit use to avoid paying monetary compensation for losses and damages to victims.


This defense bars plaintiffs from recovering compensation if they were fully aware of the risks posed by their actions, even if they were injured in the accident.


If plaintiffs knew of the risks but chose to ignore them, the defendant can use this affirmative defense to prevent them from recovering compensation. However, the assumption of risk rarely comes up in Indiana personal injury cases.


Furthermore, the assumption of risk doctrine is often used to determine the percentage of liability of the plaintiff in order to reduce the recovery amount.


Defendants can use the assumption of risk defense to try to bar plaintiffs from receiving any form of compensation, but victims are only prevented from recovering the entire sum under rare circumstances.


How the Assumption of Risk Applies in a Personal Injury Case

In most personal injury cases, plaintiffs should prove the following:

  • The defendant or person who caused the accident owed them the duty of care, which is people's obligation to behave reasonably to avoid injuring others.

  • The defendant breached the duty of care by failing to meet their obligations to avoid harming other people's safety and welfare.

  • The defendant's failure to live up to the duty of care harmed the plaintiff.

  • The plaintiff suffered losses and injuries due to the defendant's act and is entitled to receive monetary compensation for related expenses under personal injury law.

However, proving these elements does not mean the claimant will win the personal injury case. The defendant can use the assumption of risk doctrine to counter plaintiffs' allegations and avoid paying compensation.


When this occurs, whether the defendant's negligence contributed to the accident or whether the victim actually assumed the risk of injury plays a critical role in determining liability.


Types of Assumption of Risk in Indiana Personal Injury Claims


Assumption of risk occurs in two ways, which defines the three common types of this legal defense. These are:


Primary Assumption of Risk

This is the strongest type of assumption of risk in a personal injury case and applies when injured people assume well-known and incidental risks.


In other words, the plaintiffs are presumed to understand the risks involved in the activity in which they participated or in the act they performed.


When primary assumption occurs, the nature of the accident or activity would have changed if the claimant had not assumed the risk.


This type of defense is commonly used for cases related to sporting events. However, it completely bars plaintiffs from recovering compensation for their injuries.


Express Assumption of Risk

This legal defense applies in cases where individuals acknowledge that they assumed the risk of injury by signing a contract or waiver.


Secondary Assumption of Risk

Also known as implied assumption of risk, it applies in cases involving plaintiffs who do not sign a contract to accept certain dangers but voluntarily engage in a high-risk activity.


When a person decides to participate in an activity that poses certain dangers, they assume the risk of that.


Defendants use the assumption of risk to reduce plaintiffs' recovery amount. However, in this case, this legal doctrine assigns a percentage of fault to each party. Therefore, it is handled under Indiana's comparative negligence rules.


The Assumption of Risk in States with a Comparative Negligence System


Many states have replaced this old legal doctrine with comparative negligence rules when there is an implied assumption of risk.


Under the comparative negligence rules, defendants should not focus on the fact that injured parties assumed the risk involved in the act they committed. Instead, they must prove that claimants were also negligent in ensuring their safety. This applies when both parties are at fault for the accident that caused the injuries.


Indiana uses a modified comparative fault, which means both parties can be found liable for the accident. Their percentage of fault defines the amount of damages that plaintiffs can recover.


However, this modified comparative negligence system dictates that claimants will not be able to recover damages on a personal injury claim if their percentage of fault passes a certain threshold.


In this state, injured parties are barred from recovering compensation if their percentage of fault exceeds 51%.


How Can an Experienced Personal Injury Lawyer Help Plaintiffs?

How Can an Experienced Personal Injury Lawyer Help Plaintiffs?


When the assumption of risk is a factor in a personal injury claim, the best thing plaintiffs can do is seek help from seasoned attorneys. They can advise on intentional tort vs negligence in personal injury cases.


Defendants will use this legal doctrine to attempt to bar claimants from receiving compensation or reducing the recovery amount. However, personal injury lawyers in Indianapolis IN can fight for victims' rights and prove that at-fault parties' allegations are not valid.


A person injured by another party's negligence or wrongdoing should be compensated with fair remuneration. At Schuerger Shunnarah Trial Attorneys, we know the Indiana legal system and have extensive experience handling cases involving the assumption of risk defense.


Our personal injury lawyers are willing to help victims understand their rights, build solid cases, gather enough evidence, and present their claims in court to recover the compensation they deserve. Contact us today!

Comments


bottom of page