Every legal doctrine plays a role in the legal system. The doctrine that is known as assumption of risk keeps a plaintiff in a personal injury case from seeking damages for an injury that he or she invited, simply by agreeing to be exposed to a known danger.
What a defendant’s lawyer must show, in order to use assumption of risk as a defense strategy
The plaintiff was aware of the risky nature of his or her participation in a given event, or decision to get a taste of a certain recreational activity. The plaintiff had gained earlier knowledge about the dangers that had been linked to such participation, or such a decision.
The plaintiff had agreed to accept the known risk, and had done so in one of 2 ways:
• By signing a waiver, a written agreement to forgo pursuit of a lawsuit, if harmed by exposure to the known danger, or by purchasing a ticket that carried such a waiver.
• By carrying out a physical act that confirms the agreement to accept the risk: That act could consist of a hand shake, a readiness to step forward, a nod in answer to the question, “Do you accept this risk,” or some similar form of conduct.
How does an assumption of risk defense benefit a defendant in a personal injury case?
Acceptance of that defense removes the ability of the plaintiff’s lawyer to claim that the defendant had a duty of care towards the plaintiff. Obviously, if the defendant did not have a duty of care towards the plaintiff, then he or she could not breach that non-existent duty of care.
How could the plaintiff’s attorney fight an assumption of risk claim from the defendant’s legal team?
That personal injury lawyer in Carol Stream could work to show that the danger responsible for the client’s injury had been either hidden or camouflaged in some manner. If a recognized danger were not obvious or apparent, then the creator of that same danger could not claim assumption of risk, when faced with an injury to a team player or a customer.
That provision takes into consideration the chance that some new danger might have been added to a pursuit that was already dangerous. If someone who did not know about the new danger were to get injured, the person that knew about, but hid, the new danger could not claim assumption of risk on the part of the injured victim.
Similarly, someone that operated a risky recreational facility could be held responsible, if another person introduced a new danger. Unless that new danger was made quite obvious or apparent, the facility operator could not claim assumption of risk, after someone got injured at the affected facility.