When you suffer an injury in an accident in Florida that is someone else’s fault, you can attempt to seek damages that compensate you. However, defendants and the insurance company may try to employ the doctrine of assumption of risk to limit or deny the compensation you may receive.
Should the insurance company use the doctrine of assumption of risk to offer you a lower settlement or no settlement during negotiations, you still have the right to fight back. If you and your Florida personal injury lawyers can show evidence that proves your case doesn’t fit under the principles of the doctrine, you may be able to recover the settlement amount you deserve.
How Does Assumption of Risk Work?
Under the assumption of risk, you knowingly participate in an activity or behavior that has the possibility to cause you injury. This common law doctrine allows defendants to use this decision as grounds to waive some or all of your rights away to seek compensation if injured. Once you assume the risk of participating in the activity, the legal system assumes that you are automatically agreeing to abide by the doctrine.
The legal system recognizes two systems by which a plaintiff would agree to accept the assumption of risk.
Express Assumption of Risk
This system has the participant sign a legal document, a waiver. The document explains the dangers inherent in the activity and the limits the plaintiff may take to recover compensation if injured.
Implied Assumption of Risk
With implied assumption, the participant knows the dangers involved and does the activity anyway, which prevents them from holding another party at fault if the harm was inherent to the activity.
Some common situations where the assumption of risk applies include:
Slip and Fall Cases
As our slip and fall attorneys know, proving the defendant at fault to win an award for you can be a challenge. The key is proving the defendant’s actions, or inactions, were reckless or negligent.
Take a slip and fall accident where the plaintiff tripped in an unlit, unpaved property after dark. The defendant’s insurance company may argue that a reasonable person knows there’s a risk involved. The insurer may argue that you were partially at fault for falling because you should have understood that you were participating in a risky activity.
Struck By an Object
Another example is participating in sporting events, as a participant or spectator. If you are attending a sporting event and end up being struck by a baseball, golf ball, or hockey puck, the assumption of risk often applies. A reasonable person knows that attending this type of event involves a bit of risk.
If you try to file a personal injury claim because of the injuries you suffered when struck, the defendant would highlight your assumption of risk to avoid paying you any settlement money.
Making You Aware of Potential Risks
Defendants may claim they used multiple means to make people aware of inherent risks. They may have:
- A written contract that explains the risk
- Printed warning of the risk on documents you receive
- An employee or representative verbally describes the risk
- Printed signs in the area that warn of risk
- Warning labels on chemicals or substances
You don’t necessarily have to acknowledge that risk is present through a signed document or through a verbal agreement. In some situations, the law simply expects you to know that the activity is risky.
Assumption of Risk May Apply in Comparative Negligence Cases
As we said previously, you may find that the insurance company is arguing that you are partially to blame for the accident. Partial blame in personal injury cases is expressed in percentages, and that percentage reduces your potential settlement. This sharing of fault is known as comparative negligence. Florida allows for comparative negligence, per Florida Statute § 768.81.
How Assumption of Risk Fits a Comparative Fault Case
Perhaps the insurance company agrees that its client’s actions played a role in the accident, but it argues that you should only receive part of the settlement amount you are seeking because your assumption of risk also contributed to your injuries.
Maybe the insurance company says you are 50% to blame because you knew you were participating in a risky action, while the defendant is also 50% to blame.
This is a negotiating tactic that insurance companies may try to use to treat you unfairly in a settlement. When you have insurance bad faith attorneys representing you, they might show your share of comparative fault should be far less than 50%. A case with comparative fault can be challenging to settle, but an attorney could help you fight for a fair settlement.
Situations Where Assumption of Risk May Not Apply
Even if an insurance company tries to argue that you have an assumption of risk that reduces or eliminates your attempt to win a personal injury claim, it doesn’t mean that you have to agree. There are some situations where the assumption of risk doesn’t apply.
- Reckless behavior: If the defendant in your personal injury claim was behaving negligently or recklessly, your assumption of risk may be negated.
- Unforeseen danger: If you attend a baseball game where you understand the primary risk, such as being hit by a baseball, but you suffer injuries from an unexpected risk, such as slipping and falling in a wet bathroom, the assumption of risk doctrine may not apply, as the known risk did not cause your injury.
Ged Lawyers Can Help You Understand Florida’s Doctrine of Assumption of Risk
If you feel like the insurance company is trying to force you to accept a lower settlement than you believe you deserve by claiming you had an assumption of risk, the attorneys at Ged Lawyers are ready to help. Reach out today for a free review of your case.
