Victims of personal injuries suffered at private establishments have a right to compensation as long as they can prove negligence on the defendant’s part. However, the defendants will have an opportunity to secure themselves, and one of the defenses they can explore is the claimant’s assumption of risk.
Assumption of risk is a legal doctrine that limits a claimant’s right to compensation, if there is evidence to show that they had expressed knowledge of the risks associated with an activity but willingly assumed the risk. While Texas is pretty strict on the application of this defense, there are situations where it could be valid.
Assumption Of Risk in The Texan Context
“In some states, the assumption of risk defense applies by default for inherently risky activities, such as rock climbing, paragliding, scuba diving, etc. There was also a time when the assumption of risk was an affirmative defense in Texas personal injury cases when properly used, but not anymore,” says Texas personal injury lawyer Felix Gonzalez.
However, the law still recognizes that an individual can expressly assume the risk in what may have otherwise been a tort claim, thereby limiting their chances of recovering compensation.
For a defendant to use the express assumption of risk as a defense in a tort claim, they must show that the claimant contracted to do so by signing a contract or orally.
Where the Assumption of Risk Defense May Apply
As mentioned earlier, the express assumption of risk is applicable in every case where the defendant can prove the claim’s written or oral assumption of the risks.
For example, most establishments offering activities that involve significant risk to injury, such as sky diving or mountain climbing, will have participants sign a document waiving their right to compensation for harm arising from risks that are inherent to the activity.
It can apply in medical malpractice claims after sustaining injuries that are inherent to the procedure. Injuries intrinsic to a surgical procedure must be expressly mentioned in the medical consent form signed before surgery.
It can also apply in some product liability lawsuits if the injuries for which claimants file a claim were inherent to using the product. For example, using a chainsaw exposes the user to some risks, such as the chain coming off and causing an injury. As long as the cause of the chain coming off is not a result of manufacturer fault and the claimant consented to use the product knowing the risks, the defendant can use the express assumption of risk as a defense.
Limitations To Express Assumption of Risks
The express assumption of risk doctrine only applies to risks that are inherent to the activity in question. For example, while falling is intrinsic to rock climbing, rope breakage is not. If a fault in the ropes provided by an establishment is the cause of an accident, the establishment will be liable for the accident.
The defense may also not apply in cases of an intentional tort or wanton disregard of the safety of others by the establishment or its employees. In such a situation, the defendant will not only be facing civil lawsuits in a personal injury claim but also a criminal charge.
Cases involving the assumption of risk can be pretty challenging. As such, it’s always advisable to involve a Texas personal injury lawyer as early as you can. The more you wait, the more your chances of making mistakes that can hurt your case and rob you of your right to compensation.
