Stephen Hasner | Personal Injury | September 2, 2021
Determining whether you are eligible to recover compensation after an accident can be difficult. There are often numerous elements influencing whether you are entitled to damages.
For example, you may have heard the term “assumption of risk” in the context of personal injury cases. This overview will explain the concept. The best way to determine if assumption of risk applies to your case is to consult with an attorney.
Assumption of Risk: What You Need to Know
Assumption of risk is an affirmative defense. A defendant in a lawsuit may allege that a plaintiff (injury victim) assumed the risk of their conduct. This means that the victim suffered injury while knowingly engaging in a behavior or activity that carried a risk of injury.
If the affirmative defense is successful, the defendant would not owe the plaintiff compensation for their injuries (or would at least owe them less than their full damages).
Examples of cases in which a defendant might use the assumption of risk defense include:
- A victim was injured when riding an amusement park ride.
- A victim is injured while participating in extreme sports, such as paragliding, base jumping, or skydiving.
- An athlete is injured while playing contact sports.
- Someone attending a baseball game is hit by a ball that misses its target. There have been instances when courts have ruled that victims are not eligible for compensation in these circumstances. They’ve determined that those choosing to attend such sporting events know there is a chance of injuries to spectators.
In all these examples, there is a high risk of injury for participants. Individuals who know the risks and suffer injury may have assumed the risk of participation. However, defendants often assert weak affirmative defenses to put pressure on the plaintiff to settle for less than they deserve.
Therefore, you should meet with an attorney after an accident or injury caused by another. Your attorney will explain your legal options for recovering compensation and identify whether assumption of risk applies.
How Comparative Fault or Negligence Affects the Assumption of Risk Defense
Over the years, it’s become less common for defendants to avoid compensating injury victims by claiming assumption of risk. Instead, Georgia and many other parts of the country have enacted comparative negligence or fault laws to deal with situations where an injury victim shares fault for an accident.
Georgia uses a modified comparative fault approach. In Georgia, a victim who contributed to their injuries can still recover compensation — as long as they share less than 50% of the blame for their accident. If the victim is less than 50% responsible, their compensation will be reduced by their share of fault.
For example, suppose you’re involved in an Atlanta truck accident involving a truck driver. A jury finds the truck driver and the trucking company 80% responsible for the accident. However, it finds you 20% responsible for speeding at the time of the accident. Under GA’s comparative fault rules, you could only recover 80% of your damages.
Insurance companies use this rule to avoid compensating claimants. This doesn’t mean they are always correct. This highlights the value of seeking representation from an attorney. A lawyer can negotiate on your behalf if a defendant or insurer tries to use the assumption of risk or comparative fault defenses improperly.