Assumption of Risk: Why It’s Not the End of Your Premises Liability Case

In premises liability cases, one of the most common defenses raised by property owners and their attorneys is the assumption of risk defense. This defense is often invoked in situations where the injured person was participating in activities that inherently carried some level of danger, such as attending a sporting event, visiting an amusement park, or engaging in extreme recreational activities. The defense argues that the injured person knowingly accepted the risks associated with the activity and, therefore, cannot hold the property owner responsible for any injuries sustained.

While the assumption of risk defense can seem like a major obstacle, it is not the end of your case. With the help of an experienced premises liability attorney, you can overcome this defense and still recover compensation if the property owner’s negligence contributed to your injury. In this article, we’ll break down the assumption of risk defense, discuss how it is applied in premises liability cases, and explain the legal strategies used to defeat it.

Understanding Assumption of Risk: Primary vs. Secondary

The assumption of risk defense is based on the principle that individuals who engage in certain activities are aware of the inherent dangers and voluntarily accept those risks. However, not all risks are created equal, and the law recognizes different types of assumption of risk:

1. Primary Assumption of Risk

Under the doctrine of primary assumption of risk, the defendant (usually the property owner or event organizer) argues that the activity in question inherently involves certain risks, and the plaintiff voluntarily chose to participate in that activity knowing the risks. Because the plaintiff willingly accepted those dangers, the defendant claims that they have no duty to protect the plaintiff from the risks inherent in the activity.

• Example: If you are injured while playing a contact sport like football, the property owner or event organizer may argue that you accepted the risk of injury by participating in the game, which inherently involves physical contact and the possibility of injury.

2. Secondary Assumption of Risk

In cases involving secondary assumption of risk, the defendant acknowledges that they may have been negligent in some way (for example, by failing to properly maintain the premises), but they argue that the plaintiff was aware of the specific danger and voluntarily chose to proceed despite knowing the risk. In other words, the defendant argues that the plaintiff assumed the risk of the specific hazard that caused the injury.

• Example: If a customer notices a "Wet Floor" sign in a grocery store but chooses to walk across the wet floor anyway and then slips and falls, the store may argue that the customer assumed the risk of injury by proceeding through the hazardous area.

Common Scenarios Where Assumption of Risk Is Raised

The assumption of risk defense is frequently raised in the following types of premises liability cases:

• Amusement parks: Injuries sustained on rides or attractions where the risk of harm is considered inherent to the experience.
• Sporting events: Spectators injured by errant balls or pucks, or players injured during the course of the game.
• Extreme sports or recreational activities: Injuries from activities like skydiving, rock climbing, or zip-lining.
• Concert venues: Injuries caused by rowdy crowds or mosh pits at concerts or festivals.

In each of these situations, property owners and event organizers may attempt to argue that the injured person willingly accepted the risks involved by choosing to participate in or attend the activity. However, this defense can be overcome if it can be shown that the property owner’s negligence contributed to the injury.

How to Overcome the Assumption of Risk Defense

While the assumption of risk defense can present challenges, it is not insurmountable. A skilled premises liability attorney will use a variety of legal strategies to demonstrate that the property owner’s negligence, rather than the inherent risks of the activity, caused the injury.

1. Proving That the Property Owner Failed to Maintain Safety Standards

Even in activities that carry inherent risks, property owners have a duty of care to maintain reasonable safety standards and minimize unnecessary risks. If the property owner failed to maintain the premises properly or created additional risks beyond those inherent to the activity, they can still be held liable for the injury.

• Example: In an amusement park injury case, even if the injured person assumed the risks of riding a roller coaster, the park may still be liable if the ride was not properly maintained or safety measures were not followed.

2. Demonstrating That the Injured Party Was Not Fully Aware of the Specific Hazard

In order for the assumption of risk defense to apply, the injured person must have been fully aware of the specific hazard that caused the injury. If the injured party was not informed of the danger or did not have the opportunity to assess the risk, they cannot be said to have assumed the risk.

• Example: If a person slips and falls on a wet floor at a concert venue, the venue may argue that the person assumed the risk by entering a crowded, energetic environment. However, if the injured person was not aware of the specific wet floor that caused the fall, they did not assume the risk of that particular hazard.

3. Using Expert Testimony to Show That Certain Risks Could Have Been Mitigated

In some cases, the injured person may have been aware of the general risks associated with an activity, but the property owner could have taken steps to reduce or eliminate the specific hazard that caused the injury. In these cases, expert witnesses can play a crucial role in demonstrating that the risk was not inherent to the activity but was instead the result of the property owner’s negligence.

• Example: In a skydiving accident case, an expert in skydiving safety may testify that the accident could have been prevented with proper equipment checks or better training for the instructors. Even though the injured person accepted the general risks of skydiving, the property owner may still be liable for failing to take reasonable safety precautions.

Client Takeaway: Assumption of Risk Doesn’t Mean You’re Out of Options

If you’ve been injured in an activity that involves some level of inherent risk, you may be wondering whether you still have the right to pursue compensation. The good news is that assumption of risk doesn’t automatically bar you from recovering damages if the property owner’s negligence contributed to your injury.

At Ironclad Injury Law, we understand the complexities of assumption of risk cases and know how to defeat this common defense. By proving that the property owner failed to maintain safety standards, failed to warn you of specific hazards, or failed to mitigate unnecessary risks, we can help you pursue the compensation you deserve.

If you’ve been injured in a slip and fall, amusement park accident, or any other premises liability incident, contact Ironclad Injury Law today for a free consultation. We’ll evaluate your case, explain your legal options, and work tirelessly to ensure that you receive the compensation you’re entitled to, even if the assumption of risk defense is raised.

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