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Assumption of Risk in Personal Injury Law Terms

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Assumption of Risk in Legal Terms


Assumption of risk is a legal defense generally used in claims arising out of negligence. It helps shift the liability towards the plaintiff i.e. party claiming from the defendant i.e. party being sued. The general concept encompassing the term Assumption of risk is that the plaintiff was aware of and consented to (express or implied) the risks associated with certain actions or activities performed by the plaintiff. Explore what does assumption of risk means and its legal implications, with detailed insights into risk assumptions examples in personal injury cases on the Royce Injury blog!

Understanding Negligence and Assumption of Risk

Failure to take reasonable precautions may often result in causing harm to oneself and others. This is also known as Negligence and is often accompanied by repercussions. The risk assumption definition is to understand and accept the risks resulting from a particular activity with one’s own free will. The Assumption of risk may either be expressed or implied. An express Assumption of risk may generally be acknowledged or consented to via contracts or waivers. In contrast, an implied Assumption of risk is generally depicted via the actions of the person consenting to risks. Both phrases play a vital role in assigning liability in tort matters. 

Legal Implications of Assumption of Risk

Assumption of risk defense may be helpful against minor negligence claims. However, in cases involving gross negligence or intentional harm, the defense of assumption of risk doesn’t apply i.e. waiver to sue in case of gross negligence or misconduct is not lawful. The courts assess the level of understanding of associated risk and consent obtained from the plaintiff in such claims to ascertain the actual liability of both parties. It is important to establish that the plaintiff was reasonably aware of the associated risks with a particular action or activity and proceeded to perform said action or activity regardless of the risks. 

Contractual Obligations vs. Personal Injury Rights

A person may sign a waiver to sue in certain cases, however, such waiver may be assessed by a court of law in comparison with the public policy and interest. Accordingly, the court may declare such waiver to be unlawful or invalid if it contradicts or is in conflict with the public policy. A person cannot be denied his/her fundamental right to injury claim in cases of gross negligence or intentional harm despite having signed a waiver. The concept of contractual obligations vs. Personal Injury Rights upholds the fundamental rights of an injured person to sue in case of gross harm or negligence. 

Assumption of Risk in Various Case Types

Risk assumption examples are as follows:

  • Sports-related injuries e.g. skiing, F1 racing, etc;
  • Recreational activities e.g. rock climbing, paragliding, skydiving, etc;
  • Certain professions e.g. law enforcement agencies or firefighters. 

The individuals engaged in the aforementioned activities or professions have a common understanding of the risks associated with their activities or jobs, and they also consent to waive their rights to sue in case of injuries sustained in the execution of such activities or jobs. However, such waivers may be declared invalid by a court of law in case of gross negligence or intentional harm as well as to uphold public policy and fundamental rights of the plaintiff. 

Challenges in Proving Assumption of Risk 

As discussed in the assumption of risk examples above, a defendant may take up the defense of Assumption of risk in negligence claims. However, the plaintiff may give a counter-argument to disprove the Assumption of risk defense. Generally, proving the non-assumption of risk comes with challenges in proving the following:

  • Failure of the defendant to properly explain the risk associated with an activity;
  • Misconduct or intentional harm on the part of the defendant;
  • Plaintiff’s unawareness of indirect risks associated with an activity;
  • Subject understanding and free will of the plaintiff to participate and execute an activity involving risk.

Contractual Agreements and Assumption of Risk 

Contractual Agreements to waive the right to sue in case of injury associated with certain activities or actions do not automatically invalidate the right of a person suffering an injury to sue for an injury claim. In such cases, the courts may review the extent of the injury and the plaintiff’s level of understanding associated with the risks to ascertain the legality of the waiver signed by the plaintiff. The assumption of risk rule does not automatically invalidate an injured person’s right to injury claims. It is a defense that may be disproven by the plaintiff by presenting counter-arguments. A waiver or contractual Agreement may be declared invalid or illegal by a court of law if found in contradiction with public policy or where the plaintiff successfully proves that the assumption of risk defense is faulty. 

Compensation and Assumption of Risk 

Is the assumption of risk an affirmative defense? The simple answer is, yes. It is imperative to note that compensations in cases of negligence claims significantly depend on the assumption of risk defense i.e. if the defendant succeeds in proving that the plaintiff was aware of the risks involved with the activity giving rise to the injury then the court may deny or reduce the plaintiff any compensation for his/her injury. However, if the plaintiff disproves the Assumption of risk defense then the court may review the extent of the plaintiff’s understanding of the risks involved and his/her consent towards the same to properly assess the correct value of compensation to be awarded to the plaintiff. Therefore, the plaintiff may not be denied compensation merely on the defense of Assumption of risk. 


It is important to understand what is assumption of risk in law. It means that the plaintiff was fully aware of the risks associated with a particular activity or action and willingly chose to carry out the said activity without any coercion. Assumption of risk is commonly applicable in cases of injuries related to sports or recreational activities, and it is crucial to hire an experienced attorney who has expertise in handling such cases. It is also applicable in cases of injuries sustained in the line of duty e.g. law enforcement agencies or firefighters. The plaintiff may disprove the Assumption of risk defense by presenting counter-arguments.

Jason Royce Allen

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