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Assumption of Risk
A person who engages in sports or another risky activity assumes the risk of injury, and is responsible for any injuries sustained. According to California law, if you accept the risk of an injury, you cannot recover in a personal injury case unless the defendant was grossly negligent or reckless or intentionally injured you, or if the defendant's conduct was totally outside of what someone would normally be expected to do during the same activity.
Liability waiver and assumption of the risk are typically invoked in lawsuits for sports injuries at school, gym and fitness center injuries, workplace accidents, and activities for which the plaintiff signs a "liability waiver and assumption of the risk" agreement.
Assumption of The Risk
Individuals in California generally have a duty of care to avoid harm to others. In some cases, however, this rule does not apply. A key example is California's "assumption of the risk" doctrine. Knight v. Jewett, a case decided by the California Supreme Court in 1992, established the doctrine.
In Knight v. Jewett, the California Supreme Court distinguished two types of assumption of the risk: a "primary assumption of the risk" - when the risk of injury is such an inherent characteristic of the activity that it won't subject the defendant to negligence liability; and a "secondary assumption of the risk" - when the defendant still owes a duty of care to the plaintiff.
“Primary” Assumption Of The Risk
A court ruled in Knight that a defendant cannot be liable for injuries that result from activities, such as sports, in which a plaintiff chooses to engage.
The court ruled: “Some activities are inherently dangerous and imposing a duty to mitigate those inherent dangers could alter the nature of the activity or inhibit vigorous participation. To avoid this chilling effect, owners or occupiers of premises or businesses in which a plaintiff engages in these activities have no duty to eliminate those risks.”
It is sometimes referred to as "primary" assumption of risk when the defendant owes no duty of care to prevent ordinary negligence.
“Secondary” Assumption Of The Risk
Despite "assumption of the risk", a plaintiff may still be able to recover in some circumstances. In California, they are subject to the law of "comparative fault".
There are situations in which the risk of injury cannot be explained by the inherent characteristics of the activity or the activity is unlawful. This is known as "secondary assumption of risk," which occurs when the plaintiff nevertheless assumes the risk of injury anyway.
Normally, the trier of fact (a jury) decides the extent to which each party is accountable for the plaintiff's injury.
Signing A Liability Waiver
A company or individual offering a risky product or service may require participants to sign a contract. A plaintiff agrees to assume the risk of injury under an "assumption of the risk" agreement.
The contracts, commonly known as "waivers of liability and assumption of risk agreements," are legally enforceable in California if someone assumes the risks of ordinary negligence.
Someone cannot be legally forced to waive the right to sue for negligent acts, reckless actions or intentional acts. A defendant who has violated the law cannot escape liability.
Personal Injury Attorney
When someone is injured in California, potential defendants often claim the assumption of the risk as a defense. The fact that activity was risky or you signed a contract does not mean you do not have a legal remedy. Assumption of risk is a complex legal doctrine that California's personal injury lawyers understand.