Understanding Assumption of Risk

Imagine this scenario: You own a company that takes people on skydiving expeditions. You love facilitating fun experiences where people can live their dream of free-falling through the clouds. However, it’s important to you that your clients know skydiving may be a huge hazard and there are many things that could go wrong. You make sure they are educated about the dangers and execute a release from liability of certain inherent dangers before you take them skydiving.

Now picture this: You inherited a decaying barn from your grandfather. You don’t have the money to invest in it right now to make it usable, so it’s sitting vacant. You’re concerned that it could be a danger to anyone who may see it from the street and decide to explore it. You put up signs saying “Danger” and “No Trespassing” to deter anyone from entering the building.

In these scenarios, if a person sues you because they were injured while skydiving or got hurt while exploring your barn, you could potentially use an “assumption of risk” defense. This means you could argue that you took the proper measures (the waiver and the signs) to make it clear to the injured party that they were taking an obvious risk by going skydiving or entering your barn. In these scenarios, it is likely that a negligence claim against you could not be met.

This explains the concept of “assumption of risk” in personal injury cases and how it can be used as a defense by those being sued. But what does this legal concept mean for you if you were the injured party?

Defendants typically raise assumption of risk defenses in these types of cases:

  • Premise liability (such as the barn example above)
  • Situations in which you signed a waiver and release provision (such as the skydiving example above)
  • Extreme sport activities (this would also encompass the skydiving example above)
  • Activities involving dangerous substances.

By law, it is important that the risk can be described as “obvious” in order for an assumption of risk defense to be effective.

If the defendant cannot prove that you had knowledge of the risk involved in what you were doing before you did it, you have a chance of succeeding. They will also need to prove that you accepted the aforementioned danger — this can be by implication (such as proceeding with the activity) or expressly (such as signing a waiver).

If the defendant can prove that you assumed risk, it may mean that you do not have a basis for proceeding against them civilly.  An experienced attorney can help you determine whether or not you’ll be able to prove that you did not know of or accept the risk that led to your injury. If you have questions about these matters, the McKINNON LEGAL team is here to help.