Mark Roman | February 28, 2023 | Personal Injury
In a personal injury case, the defense might raise one or more defenses to avoid liability for damages. Assumption of risk is an affirmative defense an at-fault party might use to avoid liability for damages.
How Does Assumption of Risk Apply in Personal Injury Claims?
When a person sustains an injury or harm because of another party’s actions, the person can receive compensation for damages. Damages can include reimbursement for financial losses (economic damages) and compensation for pain and suffering (non-economic damages).
The injured party must prove that the other party caused their injury. Most personal injury claims are based on negligence. Therefore, you would need to prove the following to recover money for a claim:
- The party owed you a legal duty of care
- The party breached the duty of care
- The breach of duty caused your injury
- You sustained damages because of the party’s conduct
Assumption of risk argues that you knew you could sustain injury if you engaged in an activity. However, despite knowing the risk, you chose to proceed. Therefore, you are responsible for the damages you sustained because of the activity.
Today, assumption of risk is largely supplanted by Florida’s pure comparative fault law. If a person contributes to the cause of their injury, their compensation can be reduced by their level of fault. However, assumption of risk could still apply in some personal injury cases.
What Types of Assumption of Risk Does Florida Recognize for Personal Injury Claims?
Implied assumption of risk applies in cases where a person engages in an activity they know could result in an injury. For example, a person puts on gear and begins climbing a rock. The person’s actions imply they understand the risk of injury and choose to continue rock climbing.
Express assumption of risk involves a waiver or release. A person signs a statement acknowledging they understand the risks of a specific activity. They release the operator and other parties from any liability for injuries they might sustain by engaging in the activity.
Owners and operators of high-risk activities often use waivers of liability. Some places or activities that might use waivers include amusement parks, recreational sports, trampoline parks, skydiving companies, scuba diving operators, and deep-sea fishing boats. However, the Florida Supreme Court has ruled in several cases that express assumption of risk does not expand to cases beyond contracts not to sue and contact sports.
Does Assumption of Risk Release a Party From All Liability for a Personal Injury Claim?
A party cannot hide from liability behind a waiver or release. Neither express nor implied assumption of risk releases a party from all liability for a personal injury claim.
An exception might be if there were dangers a person could not reasonably foresee; in that scenario, assumption of risk might not apply. Likewise, if a party is negligent, assumption of risk might not be a valid defense to liability.
Never assume you cannot pursue a personal injury claim if you signed a waiver or a release. Always talk with a personal injury lawyer before signing additional documents or settling a claim.
Protecting Yourself When an Insurance Company Blames You for Causing Your Injury
Insurance adjusters gather evidence the company can use to avoid paying your claim. If the insurance company does not deny the claim, it will try to pay as little as possible to resolve the claim. Blaming you for causing the accident or injury is a common tactic for undervaluing personal injury claims.
Under Florida’s pure comparative fault law, your compensation can be reduced by your percentage of fault.
Suppose your damages are worth $750,000. However, the jury found you were 50% to blame for your injury. In that case, you would only receive an amount equal to one-half of your damages.
You can protect yourself by carefully reading documents before you sign them. If you have questions, talk with a lawyer before signing the waiver.
Before talking with an insurance adjuster, consult a Clearwater personal injury lawyer for a free consultation. You should never agree to a recorded conversation or answers questions about your case without legal advice. Your statements could be intentionally misinterpreted to accept fault for an accident.
When you are injured or in an accident, try to document the scene for evidence. Using your cell phone to make a video and take photos can be very helpful later in your case. It is also helpful to ask people at the accident scene for their names and contact numbers.
Speak With an Experienced Clearwater Personal Injury Lawyer
An insurance company might not mention assumption of risk or contributory fault. However, it is gathering evidence to protect its best interest. Therefore, it is wise to talk with a Clearwater personal injury attorney as soon as possible to even the playing field and articulate your rights.
Contact the Clearwater Personal Injury Law Firm of Roman Austin Personal Injury Lawyers for Help Today
For more information, please contact the legal team of Roman Austin Personal Injury Lawyers for a free initial consultation with a personal injury lawyer in Clearwater. We have five convenient locations in Florida: Clearwater, New Port Richey, and Tampa.
Roman Austin Personal Injury Lawyers – Clearwater Office
1811 N. Belcher Road, Suite I-1
Clearwater, FL 33765
Roman Austin Personal Injury Lawyers – Congress Ave Office
2360 Congress Avenue
Clearwater, FL 33763
Roman Austin Personal Injury Lawyers – Tampa Office
6601 Memorial Hwy Suite 202
Tampa, FL 33615
Roman Austin Personal Injury Lawyers – New Port Richey Office
2515 Seven Springs Blvd.
New Port Richey, FL, 34655