In personal injury cases, the defense may try to argue that an injured plaintiff assumed the risk of injuries. This is different than assigning fault to each defendant. Assumption of the risk is different than contributory/comparative negligence which assesses the relative fault of the plaintiff and the defendant.
Assumption of the risk is essentially the voluntary and knowing assumption of a risk which is inherently dangerous. A common example of an inherent risk is an athlete who plays a sport assumes the risk that he/she may be struck by a ball or injured by another player while the game is being played.
Assumption of risk defenses can be tricky. While the athlete who participates in sports assumes the risk of injury, it is not as clear that a sports fan who attends the game assumes the risk of injury. A pedestrian who sees an oncoming car and decides to try to cross against the street (where the pedestrian’s light is red) may have assumed the risk of an injury. Alternatively, it may be argued that plaintiff was negligent and that the laws of comparative negligence for Tennessee should apply.
In Tennessee, the defendant must plead assumption of the risk in his/her answer to the complaint. If the defendant doesn’t formally raise the defense in the pleadings, then the defendant won’t be able to assert the assumption of risk defense at trial.
When does the assumption of risk doctrine not apply?
Plaintiffs who voluntarily assume known risks may still have a personal injury claim (or a wrongful death claim) if the defendant’s actions were against the law or unreasonably dangerous. For example, an athlete doesn’t generally assume the risk of intentional assaults by another athlete. Further, Tennessee generally restricts the assumption of risk doctrine to inherently dangerous activities.
How do liability waivers affect the assumption of risk doctrine?
Sometimes people or businesses try to protect themselves by asking the participant to sign a waiver of liability. Other times, they may post a warning of a known danger.
Generally, a waiver of liability is enforceable in Tennessee, which means a person who signs a waiver agreement before being allowed to use a gym cannot file a claim if he/she suffers an injury while working out. Tennessee still does not enforce waivers signed on behalf of minors, however.
Again, the person who signs or accepts the waiver can still file a claim for dangerous acts he/she could not reasonably anticipate. Property owners can’t enforce waivers of intentional wrongs, reckless behavior, or gross negligence.
At Delius & McKenzie, PLLC, we understand how aggressive the lawyers for the insurance companies are. They’ll try every strategy they can think of to try to deny your claim, but we are prepared to fight them. We anticipate and defend claims that you assumed the risk of injury or that the injury was partly due to your negligence. For help with any type of accident claim, call us at (865) 428-8780 or fill out our contact form to schedule an appointment. We fight for injury victims in Sevierville, Seymour, Gatlinburg, Pigeon Forge, and the surrounding Tennessee locations.