Assumption of Risk Explained

ELI5: Negligence

Few things are more stressful than being injured, watching the medical bills pile up, and going all the way to the courthouse only to find out that you’re still responsible for the medical bills for your injuries. The good news is that the vast majority of personal injury claims are settled outside of court.

The bad news is that when personal injury cases do go to trial, the plaintiff is most likely to lose the case. In order to protect yourself from an emotionally exhausting trial, it is important to make sure you have not assumed risk before you were injured.


This term is a legal defense commonly used in personal injury lawsuits. Defendants will argue that the plaintiff conducted themselves in a manner that suggested they understood the risks and proceeded anyway. Assumption of risk can manifest itself in many ways. Even if you didn’t sign a waiver or weren’t explicitly told of the risks, the defendant may still be able to use the assumption of risk defense.


Assumption of risk can be broken down into two categories: express assumption of risk and implied assumption of risk. Express assumption of risk is when a person is explicitly told of the risks before engaging in an activity. Signing a waiver before engaging in a potentially dangerous activity, such as skydiving, is an example of an express assumption of risk. Implied assumption of risk means the plaintiff acted in a manner that implies they knew of the risks and proceeded anyway. A classic example of this is when a person goes to a baseball game and is hit by a foul ball. Due to the nature of baseball, a spectator understands that he is at risk of being hit by a baseball. The fact that spectator proceeds to visit the stadium anyway demonstrates that they understood the risk.


Implied Assumption of Risk can further be broken down into two categories: primary and secondary. Going roller skating is a primary example. When you engage in roller skating, you accept that there is a risk that you may fall and become injured. Therefore you cannot sue the skating rink if you fall and break your leg while skating. A secondary implied assumption of risk is where the defendant admits to being negligent, but argues the plaintiff should have anticipated the risks.  If you are jaywalking across a freeway, and a car hits you, the driver of that car may argue that you assumed the risk by jaywalking. Though the driver had an obligation to look out for obstacles on the road, it could be argued that the pedestrian was aware that walking on the freeway is dangerous.


Navigating personal injury defenses can be tricky, especially if you’re coping with the stress and pain of recent injuries. If you are not sure if you have a case, or if you have questions about receiving compensation, Moxie Law Group is just a call away. We know you’re going through a tough time, and we want to provide you with answers. Contact us to find out how we can help you gain the compensation you deserve.

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