The assumption of risk is a defense in a Houston injury lawsuit that applies to personal injury law. More specifically, a legal defense asserted by a defendant to avoid liability for a plaintiff’s injury. Risk doctrine assumes that a plaintiff knowingly and willingly places themselves at risk of injury in any actions and that they must be responsible for any injuries or damages resulting from the action.
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Assumption of Risk:
The plaintiff might be denied recovery if he assumed the risk of any damage caused by the defendant’s acts. This assumption may be expressed or implied. To have assumed risk, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily assumed it. It is irrelevant that the plaintiff’s choice is unreasonable.
a. Implied Assumption of Risk
Implied assumptions of risk situations are harder to resolve as the fact issues are difficult to prove.
1) Knowledge of Risk
The plaintiff must have known of the risk. Knowledge may be implied where the risk is one that the average person would clearly appreciate, e. g., the risk of being hit by a foul ball in a baseball game.
2) Voluntary Assumption
The plaintiff must voluntarily go ahead in the face of the risk. However, the plaintiff may not be said to have assumed the risk where there is no available alternative to proceeding in the face of the risk, e. g., the only exit from a building is unsafe.
3) Certain Risks May Not Be Assumed
Because of public policy considerations, the courts uniformly hold that some risks may not be assumed. These include:
Common carriers and public utilities are not permitted to limit their liability for personal injury by a disclaimer on, e. g., a ticket, a posted sign, etc.
When a statute is enacted to protect a class, members of that class will not be deemed to have assumed any risk.
Example: When a statute imposes safety regulations on an employer, the employee is held not to have assumed the risk where the statute is violated
Risks will not be assumed in fraud, force, or an emergency. Thus, for example, one could take action to save his person or property without assuming a risk unless his actions involve an unreasonable risk out of proportion to the value of those rights.
b. Express Assumption of Risk
Express assumption of risk typically involves a contract or agreement between the parties that contains an assumption clause. The person participating in the activity signs a waiver and agreement stating they understand the risks and agree to participate regardless. The deals often contain language relieving the owner or operator from any liability for damages.
The Texas Supreme Court has stated about the assumption of the risk in a Houston personal injury case, “The defense of express assumption of the risk is available only to one who proves that the plaintiff gave express oral or written consent before encountering the injury-causing risk. For example, if the facility charges a fee for the activity, the express assumption of risk may not be a valid defense for the owner or operator.
The risk may be assumed by express agreement. Such exculpatory clauses in a contract, intended to insulate one of the parties from liability resulting from his own negligence, are closely scrutinized but are generally enforceable.
However, these rules do not apply to Intentional Torts as is discussed in another blog in Houston Injury Lawyers PLLC.
No Defense to Intentional Torts Assumption of risk is not a defense to intentional torts. It is, however, a defense to wanton or reckless conduct.
Here at the Houston Injury Lawyers, PLLC, our hard-working, dedicated team of attorneys has a history of success in similar cases. We have won favorable outcomes for a range of clients across many instances.
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