Can Assuming the Risk of Injury Prevent You From Suing?

Michael Waks

9 years ago

Activities like skiing, or organized sports such as football, involve inherent risks. People who participate in activities with a high likelihood of injury may be restricted in their ability to file a lawsuit if an injury occurs. Participants in dangerous activities are often required to sign liability release forms limiting the legal responsibility of activity organizers in case of injury. Even when no liability releases are signed, participants in dangerous activities will be limited in their ability to sue simply because the activity is inherently dangerous.

There are certain circumstances under which a victim who gets hurt while engaged in a dangerous activity, and assuming the risk of injury, may still have a legal right to file a lawsuit for damages. This is true even for victims who get injured after signing a liability release.

Filing a Lawsuit After Assuming the Risk of Injuries

When a person signs a liability form or voluntarily engages in a dangerous activity, the person is said to have assumed the risk of injury. Assumption of the risk is actually an official legal doctrine, and, depending upon the circumstances, can affect a victim’s case in different ways.

One recent case illustrates how complicated it can be to determine if a victim assumed the risk of an injury or if someone else’s negligence lead to the victim’s injury. The case was reported on by Claims Journal and involves a 16-year-old skier who died after falling head first into a tree well. Tree wells are hollow areas that form around the base of trees and can be difficult to escape. In this case, the young skier fell into the tree well, could not get out, and suffocated. The tree well was located near a groomed area where skiers get off the lift. There were no warning signs posted and the area was not blocked off. The skier’s parents filed a lawsuit against the owners of the ski resort.

The owners claimed the young skier had assumed the risk because tree wells are an inherent danger of skiing. The U.S. District Judge ruled against the request to dismiss the case pointing out that tree wells were not considered “inherent dangers and risks” in Montana’s Skier Responsibility statues. The Judges decision means a jury will hear all the arguments and decide if the family should be compensated for wrongful death, or if no compensation is appropriate because the victim assumed the risk of injury.

Similar cases arise when people are hurt skiing, participating in sports, or engaging in risky activities like sky diving, zip-lining or bungee jumping. Whether they can sue depends upon who was responsible for an accident.

When Does Assuming the Risk of Injuries Prevent Recovery of Damages?

Whether a plaintiff is precluded from suing due to assuming the risk of injury is a complex question that must be decided on a case-by-case basis.

If a plaintiff signed a liability release, a defendant can raise an assumption of the risk defense. California Civil Jury Instruction 451 makes clear that a defendant who wants to avoid legal liability has the burden of proving the plaintiff agreed before the incident not to hold the defendant responsible for damages. If the defendant proves the plaintiff agreed, the plaintiff can only recover compensation by proving the defendant intentionally caused harm or was grossly negligent.

In cases when there is no signed liability release, different rules apply. For example, if a plaintiff is hurt by a co-participant in a sport or activity, California Civil Jury Instruction 408 specifies the plaintiff can recover losses for injuries from the defendant only if the defendant acted intentionally to cause injury or acted so recklessly that the behavior was outside the norm for the particular sport or activity.

A Long Beach personal injury attorney can help victims who got hurt doing dangerous activities understand their rights.

Contact an Experienced Long Beach Accident Attorney to Help

Your Injuries are Personal to Me

My law practice exclusively represents injured accident victims. I have extensive experience helping clients recover compensation even when defendants allege the plaintiff should be precluded from suing due to assuming the risk of injury. I will prove the defendant’s conduct made him liable for losses, even if you were involved in a dangerous activity when you got hurt.

Call the Law Office of Michael D. Waks at 888-394-1174 or use the convenient online contact form to schedule a free consultation. You are under no obligation and you will never pay any money unless you recover damages for your injuries. I offer bilingual services as part of my comprehensive approach to legal representation and I am available 24/7 to talk to you about your case.

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Michael Waks

Michael Waks is an aggressive advocate for people who have suffered because of someone else’s actions. Michael decided to become a personal injury lawyer when, while clerking at a legal defense firm during law school, he witnessed and was infuriated by asbestos manufacturers spending millions to avoid taking responsibility for the egregious injuries they caused. Immediately after passing the bar, Michael opened his own firm in Long Beach, CA to help the victims of personal injury accidents get every benefit owed them under the law.