There are various legal defenses that a defendant may use in an attempt to avoid liability in a Houston personal injury case, including the assumption of risk. Assumption of risk means the injured party voluntarily and knowingly engaged in an activity that carries with it a high risk of injury. Understanding this type of affirmative defense is vital, as it can be devastating to the outcome of your claim. An experienced Houston personal injury lawyer can assess your case and determine if the assumption of risk defense could potentially have an impact on your compensation.
How Assumption of Risk Can Affect Your Personal Injury Claim
When assumption of risk is introduced as a defense, the defendant is claiming that the plaintiff (victim) cannot obtain damages since they should have known about the danger of injury. It asserts that the plaintiff either gave implied consent or expressed consent:
- Implied Consent: had knowledge of the risks involved in taking part of that activity and/or service. An implied assumption of risk is typically used in cases involving premises liability or dangerous activities, such as skydiving, amusement park rides, sporting activities, trampoline parks, etc.
- Expressed Consent: Knowingly accepted the risks associated with the activity and/or service through an agreement or their actions. Expressed consent is often associated with a waiver of liability that is agreed to and signed prior to the risky activity (though in some cases verbal express consent is permitted). In these cases, it can be particularly difficult to recover compensation, since waivers of liability can excuse the defendant from being held responsible for any injuries.
A successful assumption of the risk defense can impact your recovery by leading a judge or jury to find you partially or completely responsible for your injury. Each case is unique, and the defense’s effectiveness will hinge on the facts and evidence presented by both sides.
Exceptions to the Rule
There are exceptions to the assumption of risk defense, as the injury suffered must be “foreseeable.” The foreseeability test determines proximate cause— or a party’s liability—for an act of negligence that resulted in injury. Basically, it asks whether a person of ordinary intelligence should have reasonably foreseen the potential consequences of his or her conduct. For example, an assumption of risk defense might not work if a plaintiff was injured on a roller coaster caused by damaged safety equipment. That’s because the injured party didn’t know about the risk posed by the damaged equipment prior to getting on the ride.
Additionally, the assumption of risk defense will not protect a defendant from liability for reckless or intentional behavior. For instance, if the defendant knew about the roller coaster’s damaged safety equipment and still allowed people to ride it.
Modified Comparative Negligence Laws in Houston
Under Texas’ modified comparative negligence laws, you can still recover damages when you are partially at fault, but only as long as it is less than 51 percent. The amount of compensation you are awarded will be reduced by the percentage of liability assigned to you. As an example, if a jury awards you $100,000 and you are found 20 percent at fault for your injury, then you will receive $80,000. If you are found more than 50 percent liable, you cannot recover damages.
Get Help From a Houston Personal Injury Attorney
Personal injury cases where an assumption of risk defense is used are often tough fights in court. A skilled injury lawyer in Houston can evaluate your case to see if the assumption of risk applies and help you explore your legal options. Schedule your free consultation with an attorney at the Milano Legal Group PLLC today for help obtaining the best recovery possible.