If you are pursuing a personal injury claim, then you should be prepared for the assumption of risk defense. This is where the defendant claims that you knew the activity that caused your injury was dangerous, but you went ahead and participated. The defendant must prove you knew about the risk and voluntarily accepted to participate in the dangerous activity. However, the assumption of risk is not a watertight defense; it has its weaknesses. Here are three examples of these weaknesses:
It Doesn't Cover Violations of Public Policies
A public policy is a collection of laws, regulations, and mandates the government uses to maintain order and meet its citizen's needs. Public policies are usually created through both legal and political processes.
For example, a series of stadium accidents may prompt legislators to come up with a public policy on the construction of stadiums. Now assume that a stadium isn't constructed in line with the public policy, and the defect results in an accident that causes your injuries. Even if you agreed to play in the defective stadium, the defendants cannot claim assumption of risk because their actions violated a public policy.
It Doesn't Cover Intentional Acts
The defendant cannot use the assumption of risk defense if his or her intentional act caused your injury. An intentional act is one in which the perpetrator desires the outcome of his or her act irrespective of the probability of the outcome happening. It may also cover an act in which the perpetrator is almost sure of the outcome irrespective of what he or she wants.
For example, if the person in charge of college supplies gives you defective sports shoes to play with, knowing that they are defective, then his or her act is intentional. This is because he or she knows that playing in defective shoes may lead to a slip-and-fall accident. Therefore, such a person cannot use the assumption of risk defense if the defect causes your injury.
It Doesn't Apply If You Lack the Capacity to Understand the Risk
Finally, the assumption of risk defense also crumbles if you don't have the capacity to understand the inherent danger of the activity that causes your injury. This is because the defense of assumed risk is based on contract law. You agree to participate in a dangerous activity and waive your rights to sue the person in charge of the activity (defendant) in case you get injured. However, a contract isn't valid if one of the signatories (in this case you) isn't competent to sign it.
For example, if a mentally ill loved one who gets injured while playing hockey with defective shoes, the defendant cannot use the assumed risk defense to escape responsibility. This is because a mentally ill person lacks the capacity to waive his or her right to sue in case of an injury.
For more information, contact Smith & O'Hare PS Inc or a similar firm.Share