Assumption of risk is a legal doctrine in Texas law. It can be used as a defense in personal injury cases, such as car accidents or slip and fall incidents. It means that the plaintiff voluntarily assumed the risk of injury by engaging in a known dangerous activity or situation, and therefore cannot recover damages for injuries sustained as a result.
Under Texas law, there are two types of assumption of risk: express assumption of risk and implied assumption of risk. Express assumption of risk occurs when a plaintiff explicitly agrees to assume the risk of injury, typically through a waiver or release form. Implied assumption of risk occurs when a plaintiff voluntarily engages in a known dangerous activity or situation, and the risks associated with that activity or situation are so obvious that the plaintiff should have known and understood them. In such cases, the plaintiff is said to have impliedly consented to assume the risk.
Assumption of Risk Defense:
Assumption of risk in a personal injury case in Texas refers to the situation where the injured party voluntarily engages in a known activity or uses a product with an inherent danger, and is then injured. The defendant may argue that the plaintiff was aware of the potential risks involved in the activity or product use, and that by participating, they voluntarily assumed the risk of injury.
For instance, if you get injured while participating in an extreme sport, such as bungee jumping or skydiving, the defendant may argue that you voluntarily assumed the risk of injury by engaging in the activity. Similarly, if you were injured by a product that clearly states the risks involved, the defendant may argue that you assumed the risk by using the product despite the warning. This defense may limit or even bar your recovery in a personal injury claim against the defendant.
To successfully use the assumption of the risk defense, the defendant must prove three elements:
- The plaintiff had actual knowledge of the danger involved in the activity or situation.
- The plaintiff fully understood the risks associated with the danger, including the potential consequences if the danger materialized.
- The plaintiff voluntarily chose to expose themselves to the danger, without any coercion or duress.
Although the assumption of risk defense is extensive, it may not apply in situations where, for instance, an employee was responsible for holding your rope to prevent falling but failed to do so. It’s crucial to note that every case is unique, and assuming that your claim is automatically barred simply because you knew about the risk is misguided. In some instances, this defense may not apply at all, while in others, it may only slightly decrease the amount of compensation you could receive after an accident.
