Mesa AZ | Personal Injury attorney Brian T. Allen discusses assumption of risk in the following post:
Over the last few years, sports concussions have become a national topic of discussion as scientific evidence has increasingly pointed to their long-term detrimental effects. In fact, the NFL recently reached a settlement with a large group of former players who alleged the NFL had not taken adequate precautions regarding concussions. A small number of former players “opted out” of the settlement, meaning they refused to be part of it in order to be able to pursue their own claims. This article in Sports Illustrated – written by the magazine’s legal analyst – calls the move to opt out a “legal Hail Mary.” The article indicates that it would be very difficult to win any claim for damages in court, and gives various reasons why this is the case. One of the reasons is the legal doctrine of assumption of risk. As the article points out, the NFL will be able to argue that the players assumed the risk of concussions and their associated long term effects when they decided to play in the NFL. In other words, the NFL could argue that it shouldn’t be liable because the players knew what they were getting into when they joined the league. The NFL can use assumption of risk as a defense against liability.
Assumption of risk is something you need to be aware of if you are planning to bring a personal injury claim in Arizona. Just like the NFL, defendants can use the legal doctrine of assumption of risk to counter personal injury liability. Of course, assumption of risk may not be a viable defense to your case. Nonetheless, you should understand the law on the subject and know when you need to prepare for it. If you bring a personal injury claim and the defendant raises the defense of assumption of risk, the jury will have to decide if the defense should apply to the case. Per Arizona’s Jury Fault Instructions, the judge will give the jury a set of directions regarding assumption of risk that will look something like this:
The defendant claims that the plaintiff was at fault by assuming the risk of injury. A person assumes the risk of injury when he has knowledge of a particular risk, appreciates its magnitude, and voluntarily subjects himself to the risk under circumstances that show his willingness to accept that particular risk. As to this claim, the defendant must prove:
1. The plaintiff assumed a particular risk of injury; and
2. The particular risk was a cause of the plaintiff’s injury.
You must decide whether the defendant has proved that the plaintiff was at fault by assuming the risk of injury and, under all the circumstances of this case, whether any such fault should reduce plaintiff’s full damages. These decisions are left to your sole discretion. If you apply the defense of assumption of risk, the court will later reduce the plaintiff’s full damages by the percentage of fault you have assigned to the plaintiff.
In some cases, the jury will likely have no trouble determining that the plaintiff assumed the risk of whatever injuries are at issue in the case. For example, maybe the plaintiff actually signed a document before a dangerous activity that said he was aware of the risk and willing to participate anyway. In other cases, the assumption of risk may not be so definite. In all cases, remember that the defendant must not only prove that the plaintiff assumed the risk of the injury, but also that the injury was caused by the particular risk that the plaintiff was assuming.
It is also important to note that assumption of risk is not usually a complete defense. In other words, even if a jury finds that assumption of risk should apply, the plaintiff may still be able to recover some damages. As the directions above indicate, the jury will assign a percentage of responsibility to the plaintiff for his own injuries. Then, the judge will reduce the plaintiff’s damages in accordance with that percentage.
There is much more to discuss regarding assumption of risk and whether it may apply in your case. The assistance of an experienced personal injury attorney can help you to understand this important topic and prepare to counter an allegation that you assumed the risk of your injuries at trial. If you have further questions, please give us a call.
This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Mesa AZ|Assumption of Risk or any other personal injury, please feel free to contact Brian T. Allen at 480.461.5335, log on to udallshumway.com, or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.