Assumption of risk is a legal concept based on the idea that individuals who voluntarily participate in certain activities accept the possibility of getting hurt. In many personal injury cases, the defense uses the assumption of risk as an argument for why their client should not be considered liable for an injury. In New York, this legal doctrine can determine whether an injured party is eligible to recover financial compensation for an injury.
Assumption of risk can come into play in a variety of types of accidents. If you’ve recently been injured in an accident caused by negligence, it’s important to be aware of this concept and how it may apply to your case. Albany personal injury lawyer Paul Giannetti is proud to help injured individuals seek financial compensation and challenge defense strategies like assumption of risk. Contact our Albany personal injury firm today at 866-868-2960 to learn more in a free consultation.
Types of Assumption of Risk
New York law recognizes two categories of assumption of risk: express and implied. Knowing the difference is important because it can influence how courts evaluate a claim and whether the defendant can successfully argue that the injured party accepted the danger.
Express Assumption of Risk
Express assumption of risk is when a person explicitly agrees to accept certain dangers associated with an activity, either in writing or verbally. This is most commonly seen in signed waivers, liability releases, or contracts that participants must sign before taking part in an event or using a facility.
For example, a rock climbing gym may require visitors to sign a waiver stating they understand the risk of falls or equipment failure. Courts generally uphold these agreements if they are clearly written, specific about the risks, and not overly broad.
However, even a signed waiver will not protect a business from liability if the injury results from gross negligence, reckless behavior, or hazards that were not reasonably foreseeable.
Implied Assumption of Risk
Implied assumption of risk occurs when a person’s actions show that they voluntarily accepted obvious or inherent dangers, even without a formal agreement. This often applies to situations where risks are widely understood by anyone participating.
Courts look at several factors when determining whether the implied assumption of risk applies, such as the nature of the activity, the participant’s level of experience, and whether the danger was avoidable through reasonable precautions.
How Assumption of Risk Is Applied in New York
New York courts recognize that people may willingly face certain risks, but that doesn’t automatically absolve a defendant from all responsibility. The way judges interpret and apply the assumption of risk depends on the type of activity involved and the specific circumstances of the case.
Legal Standards and Precedents
New York’s assumption of risk law distinguishes between primary and secondary assumption of risk. In Turcotte v. Fell, the New York Court of Appeals clarified that the primary assumption of risk applies when someone voluntarily participates in an activity with inherent and obvious risks. In such cases, the defendant generally has no legal duty to protect the participant from those particular dangers.
The secondary assumption of risk applies in cases when the defendant did owe the plaintiff a duty of care and breached this duty. In these cases, the court evaluates the secondary assumption of risk based on the principles of New York comparative negligence law (CVP A14-A). The plaintiff may be assigned a percentage of fault for their role in the accident, and they may still seek damages as long as this percentage is less than 51%. However, any amount awarded in a settlement or court judgment will be reduced by this percentage of fault.
As a Defense in Personal Injury Claims
The defendant and their lawyer may invoke the assumption of risk as a defense in a personal injury case. For example, a skier who is injured on a clearly marked expert trail may see their case dismissed because the steep slope is an inherent danger of skiing.
On the other hand, if the injury was caused by negligence, such as unsafe lift operations or poorly maintained trails, the court might find that the risks went beyond what the skier accepted. In this example, the facility could potentially be held liable for damages.
Legal Strategies to Counter Assumption of Risk Claims
When a defendant raises the assumption of risk as a defense, it’s not the end of the road for the injured party. In many cases, a skilled personal injury lawyer may be able to show that the harm resulted from circumstances outside the ordinary risks of the activity, or that the injured person never truly agreed to accept those risks in the first place.
One of the most effective strategies is to demonstrate that the injury was caused by negligent or reckless conduct, rather than the inherent dangers of the activity. In New York, the primary assumption of risk only applies to hazards that are obvious and integral to the activity. IF the harm stems from conditions that go beyond those risks, the defense may fail.
Another approach is to show that the plaintiff did not fully understand or agree to the risks involved. This is especially relevant in cases involving express assumption of risk, such as signed waivers. New York courts often scrutinize these agreements closely. If a waiver is vague, overly broad, or attempts to excuse gross negligence, it may be ruled unenforceable.
Examples of Assumption of Risk
Assumption of risk may be relevant in a variety of personal injury cases.
Sports and Recreational Activities
Sports are one of the most common contexts for the assumption of risk. Athletes and spectators both accept certain dangers as part of the experience. For example, a baseball fan understands and accepts the risk of being struck by a foul ball when they attend a game. However, there are limits. Let’s say a fan was struck by a foul ball because the stadium’s protective netting was broken. In this case, the team could potentially be considered negligent and held liable.
Workplace and Employment Settings
Employers are not permitted to use the assumption of risk as an argument against a New York workers’ compensation claim. Injured workers always have the right to seek benefits, regardless of who was at fault for the accident and related injuries. New York law does require employers to minimize risks to employees through training, safety equipment, safe hiring practices, and compliance with labor regulations.
In exchange for providing no-fault workers’ compensation insurance to employees, employers are generally protected from liability for work-related injuries. However, third parties like equipment manufacturers may be held liable in product liability claims if a defective product causes a work injury.
Steps to Take If You’re Affected by Assumption of Risk
If you’ve been injured in a situation where assumption of risk might be raised, it’s important to act quickly to protect your rights:
- Seek medical attention immediately and keep detailed records of your injuries and treatment.
- Document the scene, including any hazardous conditions, defective equipment, or lack of safety measures.
- Avoid signing additional waivers or providing written statements without legal guidance.
- Speak with an experienced New York personal injury attorney as soon as possible.
An attorney can evaluate your case and assess whether the risks were truly inherent or if negligence created dangers you never agreed to accept.
Learn More From Our Albany Personal Injury Lawyers
Assumption of risk is a common defense in New York personal injury cases, but it doesn’t automatically prevent you from seeking financial compensation. If you’ve been injured and think assumption of risk may affect your case, New York personal injury lawyer Paul Giannetti is here to help. Contact our firm today at 866-868-2960 to discuss your case in a free consultation.