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Assumption Of Risk Defense

January 19, 2018

Accidents are an unfortunate part of life. In most cases, accidents occur unpredictably. Accidents can happen in two ways; one with freak occurrence and one with a person’s willingness to participate in activities that are dangerous. These situations can give rise to a legal defense known as “assumption of risk.”

The assumption of risk is a defense in the law of torts. The concept of assumption of risk is a supporting defense that may be available to some accused in personal injury lawsuits. In order to assume the risk, you must know the risk exists. You can never assume a risk that you do not know exists.  This is an objective standard that would be decided by the jury.

An assumption of the risk, like contributory negligence, is an affirmative defense.

In order for an accused to invoke the assumption of risk defense, the litigant must have:

  1. Known that there was a risk of the similar injury that the litigant actually suffered, and
  2. Willingly deal with that danger in participating in the activity.

An assumption of the risk is, you should know it can come in two forms:

1) Expressed assumption:

The expressed assumption of the risk involves an agreement between the parties, such as a requiring an agritourism customer to sign a liability waiver before going on a hayride.

An express assumption of risk is often made in writing, usually in the form of a signed waiver or contract. However, an express assumption of risk can be made verbally also.

2) Implied assumption:

The implied assumption of the risk does not arise because of an agreement but because of the relationship between the two parties.

An implied assumption of risk is not written or stated out. Rather, a litigant acted in a way that reflected an understanding of the risk and a willingness to take part anyway.

Implied assumption of risk can be more difficult for a defendant to prove than express assumption of risk.

Exceptions to the Rule

There are also some exceptions to the assumption of risk defense. A litigant must actually suffer the same sort of injury for which the litigant assumed the risk. Essentially, the injury must be predictable. Also, the assumption of risk defense will not protect an accused from liability for careless or intentional behavior.

If you are a defendant in a personal injury case, there may be various legal defenses available to you. To be sure you have all of the most important information, consider speaking with Bryan W. crews, at Orlando Fl, to understand your options.

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