Assumption of risk is a defense that could be used against you if you bring a cause of action for a personal injury in Texas. In your attempt to hold someone responsible for causing your injury, the defendant may allege that you assumed the risks of the activity – thus protecting the defendant from liability. If this defense succeeds, you may not be awarded anything in financial compensation. This is why it is important to speak to a lawyer if you think this defense will be raised during your case.
What Does Assumption of Risk Mean in Law?
In the civil justice system, assumption of risk is an affirmative defense. A defendant can raise this defense to combat a personal injury cause of action. The assumption of risk defense asserts that the defendant is not liable for the injuries sustained because the plaintiff knowingly and voluntarily exposed him or herself to this risk. Essentially, a defendant who uses the assumption of risk defense is claiming that the plaintiff knew about the risk or hazard that caused the injury but voluntarily took the chance of getting injured anyway. Therefore, the defendant believes he or she should not be responsible for related losses. This defense is most common in cases involving dangerous activities, such as bungee jumping or cliff jumping. It can also be used in premises liability cases if a defendant had a “No Trespassing” or “Beware of Dog” sign in place. Places that offer experiences with some level of risk may also use this defense, such as gyms, amusement parks and sports arenas in San Antonio.How Can Someone Prove Assumption of Risk?
It is the defendant’s responsibility to prove the validity of the assumption of risk defense when asserted. The defendant will have the burden to prove, through clear and convincing evidence, that two main elements are more likely to be true than not true.- The plaintiff had actual knowledge of the risks involved in an activity. The defendant must show that the plaintiff knew of the risk that caused his or her injury, such as a sign warning visitors of a known risk on a property.
- The plaintiff voluntarily accepted the risk. The defendant must also have proof that the plaintiff voluntarily assumed or accepted the known risks of an activity. This acceptance could be implied by words or conduct or expressly noted in a liability waiver.