Personal Injury Lawyer Houston
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 action and 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. To have taken a chance, either expressly or impliedly, the plaintiff must have known of the risk and voluntarily accepted it. It is irrelevant that the plaintiff’s choice is unreasonable.
a. Implied Assumption of Risk
Fundamental assumptions of risk situations are harder to resolve as the facts are challenging to prove.
1) Knowledge of Risk
The plaintiff must have known of the risk. Knowledge implies where the risk is one that the average person would 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 front of the danger, e. g., the only exit from a building is unsafe.
Because of public policy considerations, the courts uniformly hold that the person responsible for the injury may not assume some risks.
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 enacted protects a class, members of that class do not assume any risk.
Example: When a statute imposes safety regulations on an employer, the employee is held not to have assumed the risk where the law 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 thinking of a risk unless his activities 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 danger. 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.
No Defense to Intentional Torts Assumption of risk is not a defense against 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.
Our goal is to fight with compassion on behalf of our clients, seeking the maximum compensation they rightfully deserve.
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