Minimizing Liability: Proving Assumption Of Risk

Posted on: 27 October 2015

If someone was injured on your property or in an accident you were otherwise involved in and you are being sued for compensation for any personal injuries that have occurred, the first thing you should ever do is to speak with an experienced personal injury attorney. It is not wise to wait, as you could be slapped with a huge bill to pay should the court rule unfavorably against you. With this being said, familiarizing yourself with the different types of defenses that can be used is especially important. One of the most popular defenses used is the assumption of risk defense, and it is primarily used in premise liability cases, such as trespassing incidents or slip and fall injuries on one's property.

Understanding the Basics of Assumption of Risk

If you are being accused of being negligent, most personal injury attorneys will explore whether the assumption of risk defense, which is commonly used in tort law, is applicable in your situation. The assumption of risk defense basically bars an individual from recovering damages or compensation for any injuries sustained from accidents that the victims voluntarily exposed themselves to while being completely aware of the danger. In short, you will be claiming that the plaintiff suing you knew about the risks that were involved but decided to take the chance anyways.

The Elements the Defendant Must Demonstrate

If the assumption of risk defense applies to you, the burden of proof is on you, which means that you are responsible for demonstrating the following:

  • the plaintiff was aware of the risks involved in the activity; and,
  • the plaintiff voluntarily accepted the risk through through informed or implied consent.

In most cases, proving that the plaintiff was aware of the risks involved is easy depending on the type of activity that you both partook in. For example, if you and the plaintiff decided to go skiing, the courts will generally agree that the plaintiff was fully aware of the risks involved and voluntarily accepted the risk by participating in it. This is known as providing implied consent. In other cases, proving these two elements can be tricky – especially if the risks involved in the activity was not as cut and dry.

Types of Evidence Used to Prove Assumption of Risk

If the risks involved in the activity is not as obvious, it may be difficult to prove assumption of risk, as the plaintiff may genuinely not have been aware that he or she was putting himself or herself in a potentially dangerous situation. In these situations, it's important to have some evidence to back up your claims. Some of the most admissible types of evidence used to prove assumption of risk include:

  • witness testimony. If there was someone else at the scene of the accident who can prove that you had outlined the risks and that the plaintiff had still voluntarily decided to partake in the activity, he or she can called to testify on your behalf.
  • some form of written contract or legally binding agreement. The most common example would be a waiver of liability, which is generally signed by all parties before participating in the activity. In the waiver of liability, it is important to clearly state that there are risks involved with participating in the activity and list some of the examples out. This shows that you performed due diligence in clearly informing all those who participated of potential risks. In addition, the waiver of liability should state that the participants will agree to not hold you liable regardless of whether injuries are caused by negligence.


In most situations, proving assumption of risk may not be simple. This is why it is important to obtain legal counsel from an experienced personal injury attorney when planning your next legal move. It may be in your best interest to speak with an attorney ahead of time to inquire about whether a waiver of liability or any other protective measures need to be taken. 

For more information, contact a local law firm like Bulluck Law Group