Assumption is a legal doctrine which can be used to defend personal injury claims. It can therefore play a major role in determining compensation and liability.
Use in Personal Injury Cases
In personal injury lawsuits, defendants may argue that plaintiffs (injured victims) assumed the risk voluntarily and knowingly, knowing the inherent danger.
The defendant is therefore not responsible for any injuries. A court may reduce, or even eliminate compensation for a plaintiff if it determines they assumed the risk.
Types of Risk Assumption
Risk assumption can be classified into two types:
Express Assumption Of Risk
It is when the plaintiff expressly agrees to accept the risks of an activity, usually in writing. Signing a waiver prior to participating in an activity like skydiving, for example, is a good example.
Implied Assumption Of Risk
It is a more nuanced situation in which the plaintiff’s behavior or actions demonstrate that they understand and accept the risks. Attending a baseball match implies that you understand the possibility of a ball flying into the stands.
Can Nevada Assumption-of-Risk Agreements be enforced?
Nevada can enforce Assumption-of-Risk Agreements, but as with all legal issues, there are certain conditions and limitations.
Factors of enforceability
- Voluntary consent: the plaintiff must have given his or her consent to take on the risk. The agreement may be unenforceable if there is evidence that the plaintiff was coerced, misrepresented, or did not understand.
- Knowledge Of Risks In Nevada, the assumption of risk agreement is generally applicable to risks inherent in a particular activity such as skiing or adventure sports. An assumption of risk agreement may not cover risks that are not inherent in the activity but arise out of the negligence on the part of the provider.
- Clear, Unambiguous Language The agreement should use language that clearly outlines the risks and accepts those risks. Uncertain or ambiguous language can make a contract ineffective.
- Public policy considerations: Contracts that violate the public interest or involve illegal activity are not enforceable. A waiver absolving a party from liability for gross negligent or intentional misconduct might be considered against public policy.
- Minors : Agreements that are signed by minors, or on their behalf, may be subject to additional scrutiny. Certain waivers could not be enforced against minors and/or their guardians.
Can I still sue for an injury if I have assumed the risk?
Assuming risk does not eliminate your right of action. If you signed a contract or explicitly agreed to accept the risk, it may be harder to file a lawsuit compared to if the risk assumption was implied in the nature of the event. Below are some additional factors that could impact your ability sue.
Understanding the Risk
It may be harder to hold another party responsible for injuries that result from known risks if you have fully accepted and understood the risks involved in an activity.
Gross negligence or intentional misconduct
Assumption does not usually cover the more egregious behavior. You may still be able to bring a claim even if the conduct of the other party was intentional or grossly negligent.
Validity of the Agreement
You may be able to sue if the agreement to accept the risk was invalid.
In Nevada, the principle of comparative negligence is also applicable to cases involving personal injuries. This law allows you to recover compensation even if you are partially responsible for the injury. However, your fault cannot exceed 50%. The other party may still be partly liable for your injury if they are negligent as well, even if it was you who assumed the risk.
It is important to consult with a Las Vegas Personal Injury Attorney, given these complications. They can examine the facts of your case, including any written agreements and give you advice tailored to your specific situation.
The first time Harris & Harris Injury Lawyers published the post Assumption Of Risk: What Is It?.