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What is Assumption of Risk?

Nov 9, 2022 | Personal Injury

Assumption of risk is a legal doctrine recognized in New York that applies to personal injury cases. Defendants often use this as a defense in an attempt to avoid incurring liability for a victim’s damages. Specifically, if you have suffered an injury you are claiming was caused by someone else’s negligence, courts will look at the facts and circumstances of your case to determine whether you assumed any risk. 

Types of Assumption of Risk

Assumption of risk effectively means that a person knew of the risks associated with a certain activity, but voluntarily engaged in it anyway. If a defendant successfully applies this defense, it can completely bar your chances of monetary recovery in your case. 

In New York, there are generally three types of assumption of risk. These include the following:

  • Primary assumption of risk — This is the type of assumption of risk that usually applies to sports and recreational activities. It means that the participant understands the risk of the activity and assumes it.
  • Express assumption of risk — Express assumption of risk may involve a contractual agreement between the parties that contains an assumption clause. In other words, the person participating in the activity signs a waiver confirming that they are aware of the risks associated with the activity but agree to participate regardless.
  • Implied assumption of risk — When assumption of risk is implied, it means that a person knowingly understood the risks and hazards of an activity but voluntarily assumed them even though there is no writing in place.

Waivers are not always valid in New York, sometimes making express assumption of risk a difficult defense to pursue. For example, a facility that charges a fee for a recreational activity may not be able to assert a defense under the assumption of risk by law. In addition, a liability waiver might be deemed invalid if it is not clearly written or it doesn’t contain certain language. 

How Can You Rebut the Assumption of Risk Defense?

If a defendant in your case argues that you assumed the risk of the activity that led to your injuries, it’s important to have a good personal injury lawyer on your side. An experienced attorney can help you gather the evidence you need in your case and prepare a strong argument on your behalf. An attorney may be able to assert that even if you did assume some of the risks in your case, you did not assume those that actually led to your injuries. They might also be able to prove that the defendant intentionally concealed the risks associated with the activity before the accident. 

However, it’s crucial to understand that a defendant must be able to show that the plaintiff had sufficient knowledge of the risk and was able to comprehend the danger. There are three factors that typically apply when it comes to demonstrating that the plaintiff had the ability to comprehend the risk: (1) age, (2) lack of information, (3) experience. Critically, if you did not exercise ordinary care to discover the danger of a specific situation, it does not necessarily mean you assumed the risk — rather, it means that your own negligence contributed to the injuries that you suffered. In cases involving comparative negligence, you may still be entitled to obtain compensation minus your percentage of fault for the accident. 

Contact an Experienced New York Personal Injury Attorney

If you were hurt in an accident caused by another party’s negligence, it’s vital to have a skilled personal injury attorney by your side who can fight for your rights. At The Edelsteins, Faegenburg & Brown, LLP, we work diligently to secure the monetary recovery that is rightfully yours. As a result of our commitment to clients, we regularly obtain substantial verdicts and large settlements on their behalf.

The Edelsteins, Faegenburg & Brown LLP is a personal injury law firm dedicated to fighting for the rights of accident victims to ensure they get the monetary recovery they deserve for their injuries. Located in Manhattan, our firm has been handling personal injury cases throughout New York City since 1937. Call to schedule a free consultation at (212) 425-1999 today.




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