When you are involved in an accident, it’s not surprising to find that the at-fault party (or their insurance company), often tries to deny liability to reduce the potential settlement amount. Defendants do this by asserting affirmative defenses, one of which includes comparative negligence. This means they are claiming that the plaintiff was partially responsible for their own injuries in the accident.
Another affirmative defense is assumption of risk. In some instances, a successful assumption of risk case can bar recovery for the plaintiff.
Assumption of Risk
The theory of assumption of risk extends beyond car accidents. Assumption of risk theory is a legal doctrine wherein an individual is barred from recovering damages for injuries sustained when he or she knowingly exposed him or herself to a known danger. This means a plaintiff may be prohibited from seeking damages because the plaintiff knew of a hazardous condition, but chose to willingly expose themselves to it. It’s a way for the defendant to say that the plaintiff knew there was a chance of injury, but participated in a dangerous activity anyway.
You may see assumption of risk defenses raised in situations that involve premises liability matters. These are cases that may involve “no trespassing” or extreme sports activities, using dangerous chemicals, or any other type of activity where there is obvious risk of injury.
In order for an assumption of risk defense to be successful, the defendant has the burden to show that the injured party knew of the risk involved, and that despite this knowledge, voluntarily pursued the activity or exposed himself or herself to the risk. There can be either an express or implied agreement.
If the defendant can positively demonstrate the plaintiff knew and accepted the risks, then there is no legal duty for the defendant. Therefore, a claim for negligence wouldn’t be justified, meaning the plaintiff has no recourse for recovery.
Express assumption of risk is where the defendant can show the plaintiff explicitly agreed to the risk. Maybe there is a signed agreement, like a waiver, when undertaking an extreme sports activity. Skydiving, rock climbing, driving a race car, and even scuba diving are a few of the activities that a defendant can try to group under extreme sports and express assumption of risk.
Implied assumption is one that is inferred, maybe through words or conduct. This is more difficult to prove, and it’s necessary to examine facts and circumstances surrounding the specific situation. A common implied assumption of risk defense is getting into the passenger seat with a drunk driver. Defendants will make the argument that the plaintiff knowingly got into a vehicle with a person who had been drinking, and therefore it was implicitly possible an accident could take place, resulting in injuries.
Retaining a Personal Injury Attorney in South Carolina
If you sustained injuries resulting from someone else’s negligence, do not be surprised if the other carrier or attorney asserts an assumption of risk defense. You need a skilled South Carolina personal injury attorney who can help ensure your claim is not barred by this defense. Contact the team at Elrod Pope Law Firm to schedule a consultation and let us help resolve your injury claim fairly and equitably.
Thomas E. Pope is a Personal Injury, Wrongful Death, and Medical Malpractice Attorney who practices in Rock Hill, Lake Wylie, and Lancaster, SC. He graduated from the University of South Carolina School of Law, and has been practicing law for 31 years now. Thomas E. Pope believes in protecting the injured. Learn more about his experience here.