Understanding Assumption of Risk
June 27, 2023 | Winters & Yonker Personal Injury Lawyers | Personal Injury
Florida tort laws require that an injured victim prove the at-fault party caused their injury before they can receive compensation for damages. The injured party must prove the legal elements of negligence, intentional torts, product liability, premises liability, and other legal theories. If they prove their case, they can hold the at-fault party liable for damages.
However, the at-fault party can raise defenses during a personal injury trial. A common affirmative defense in personal injury cases is the assumption of risk. The at-fault party tries to avoid liability by stating the injured party shares some or all of the blame for their injury.
What Is Assumption of Risk in a Florida Personal Injury Case?
A party must be responsible for causing your injury for you to recover compensation for your economic and non-economic damages. Generally, most personal injury claims require you to prove the following legal requirements to hold another party financially responsible for your injuries and damages:
- The other party had a legal duty of care that extended to you;
- The party breached the duty of care through their actions or omissions;
- The breach of duty was the proximate and direct cause of your injury; and,
- You sustained damages because of the conduct.
However, if the at-fault party can prove you assumed the risk of being injured, it could avoid all or some of the liability for your damages.
The defendant in a personal injury case might allege that you assumed the risk of injury when you willingly engaged in a specific activity. You knew about the risk and chose to proceed regardless of the risk. Therefore, you should not be entitled to compensation for damages you willingly assumed.
What Are the Two Types of Assumption of Risk Used as a Defense in New Port Richey Personal Injury Cases?
Assumption of risk is typically defined as an implied assumption of risk or an express assumption of risk. The theory of blaming the injured party for their damages is the same. However, the proof of that assertion is different.
Express assumption of rights requires the person to sign a waiver or release of liability. These agreements are often used in high-risk recreational activities, such as skydiving, bungee jumping, and trampoline parks.
The person signs a form acknowledging the risk involved in participating in the activity. The person assumes the risk and releases the other party from any liability for damages.
Implied assumption of risk does not require a signed form. It occurs when a person willingly engages in conduct with a known risk.
For example, getting atop a horse and sitting in the saddle could be an implied assumption of risk. Swimming in a pool with no lifeguard could also be an example of an assumption of risk.
Raising the assumption of risk in a personal injury claim could be a method of intimidating an injured person that does not have legal counsel. The person might believe they are not entitled to compensation because they signed a waiver. However, it’s still possible that they never relinquished their rights and should receive compensation for their damages.
Contributory Fault and Assumption of Risk in Florida
Assumption of risk is not a complete bar from liability for injuries. A party is typically only held liable for foreseeable risks associated with the activity. If the other party is negligent or there is an unforeseen danger, the defense of the assumption of risk might fail.
In most cases, Florida’s contributory fault laws have replaced the implied assumption of risk. The law apportions damages based on the party’s degree of fault for causing the injury.
Until March 23, 2023, Florida operated under a pure comparative fault law. The injured party could be almost 100% to blame for causing their injuries and still recover damages.
However, Florida recently changed its contributory fault law. It now operates under a modified contributory fault standard.
Under Florida’s modified comparative fault law, the victim is barred from receiving any money for their damages if they are 51% or more to blame for their injury. If their blame is lower than 51%, their compensation is reduced by the percentage of fault assigned to them.Assumption of risk and contributory fault can significantly reduce the compensation you receive for a personal injury claim. Therefore, it is wise to seek advice from an experienced New Port Richey personal injury lawyer early in your case.
Contact the New Port Richey Personal Injury Law Firm of Winters & Yonker Personal Injury Lawyers for Help Today
For more information, please contact Winters & Yonker Personal Injury Lawyers to schedule a free consultation with a personal injury lawyer in New Port Richey today. We have five convenient locations in Florida, including Tampa, Clearwater, St. Petersburg, New Port Richey, and Lakeland.
Winters & Yonker Personal Injury Lawyers – Tampa Office
601 W Swann Ave, Tampa, FL 33606
Winters & Yonker Personal Injury Lawyers – Clearwater Office
600 Bypass Dr Suite 224-D, Clearwater, FL 33764
Winters & Yonker Personal Injury Lawyers – St. Petersburg Office
111 2nd Ave NE Suite 350, St. Petersburg, FL 33701
Winters & Yonker Personal Injury Lawyers – New Port Richey Office
5006 Trouble Creek Rd Unit #200, Port Richey, FL 34652
Winters & Yonker Personal Injury Lawyers – Lakeland Office
1543 Lakeland Hills Blvd Suite 18, Lakeland, FL 33805