What Is Assumption of the Risk in a Personal Injury Case?

car accident

When we think of accidents that result in personal injuries, we often think of situations in which we are just going about our normal routine when we encounter someone or something negligent. This may be a car accident when you’re on your way home or a slip and fall while walking up the outdoor stairs at your apartment building. 

However, there are also some personal injury cases in which the injured individual was made aware of the danger of the activity that they were about to engage in. This could include activities such as bungee jumping, skydiving, or cliff diving. When you are injured during one of these activities, it’s likely that the defendant will raise an assumption of the risk defense. 

What Is an Assumption of the Risk Defense?

In New Mexico, assumption of the risk is often used as a defense in personal injury cases. An assumption of the risk defense essentially says that you were aware of the risks involved with the activity in question prior to participating. These risks included personal injuries, and you still chose to participate regardless. In other words, you assumed the risk that you took in engaging in the activity, and therefore the defendant is not liable for your injuries. Should the defendant’s assumption of the risk defense be successful, you may not be entitled to compensation.

The Impact of an Assumption of the Risk Defense on Your Claim

When it comes to personal injury cases, they generally hinge on whether the defendant was negligent in his or her actions or inactions, and whether this negligence was the cause of the plaintiff’s injuries. When a defendant raises an assumption of the risk defense against your claim of negligence, the courts may find that you, in deciding to partake in the activity despite knowing the risks, were equally responsible for your own injuries. Unfortunately, even in a situation in which the defendant was negligent in some manner, you may still end up ineligible for recovery due to your agreement. 

However, while the defendant may employ an assumption of the risk defense, you may still be able to recover partial compensation depending upon the specific facts and circumstances of the case. If you are able to demonstrate that the defendant was in some way responsible for your injuries, you may be able to receive part of the compensation. Since New Mexico is a pure comparative negligence state, it means that even if you are more at fault for your injuries than the defense, you can still recover. For example, if the court found that you were 80 percent at fault, while the defendant was 20 percent at fault, you could still recover 20 percent of your damages.

One of your best hopes of combating an assumption of the risk defense is by arguing against it. You may argue that the defendant was negligent in obtaining your informed consent. In other words, if the defendant did not properly explain to you the risks involved, then even if you signed an agreement to assume the risk, you may have been unable to assume all of the risks.

Liability Waivers

If you signed a liability waiver, it can make things a bit more difficult to defend yourself against an assumption of the risk defense and to hold the other party responsible for your injuries. 

This is because a liability waiver basically says that you agree to forfeit your right to hold the defendant responsible should you receive any injuries during the activity. However, not all liability waivers are impenetrable. If the defendant was grossly negligent or malicious and intentionally cause you harm, the waiver may not stand. 

MPJ Law Firm Can Help Those in NM Who Have Been Injured in an Accident

If you or a loved one has been injured in an accident in which the other party is engaging an assumption of the risk defense, a knowledgeable and experienced personal injury attorney can help you to see if there is still a way for you to obtain financial compensation for your injuries. 

At MPJ Law Firm, we have a deep understanding of personal injury accidents and understand the affects that such accidents often have on just about all aspects of your life. We will always act in your best interest. To learn more or to schedule a free consultation, contact us today!

Posted in: Personal Injury