Jill Kolodner | April 5, 2022 | Personal Injury
Most personal injury cases are based on an assertion that the defendant was negligent (careless) and that this negligence caused the victim’s injury. Although assumption of risk is one of the most popular defenses against a negligence claim, you can credibly assert it only under certain circumstances.
What You Have to Prove to Win an “Assumption of Risk” Defense
Although the assumption of risk defense is fairly standardized from state to state, each state expresses it a bit differently. In Maryland, to prevail in an assumption of risk defense, you must prove that the victim:
- Knew the risk of the danger;
- Appreciated that risk; and
- Voluntarily confronted the risk (nobody coerced the victim into taking the risk).
The defendant must prove all three elements to avoid liability on an assumption of risk defense.
Common “Assumption of the Risk” Scenarios
Assumption of risk cases almost always arise from inherently dangerous activities such as:
- Skydiving and other extreme sports;
- Working out in a gym, especially a boxing gym;
- Amusement park rides; and
- Areas posted with signs such as “Enter at Your Own Risk” or “Beware of Dog.”
Anyone who requires you to sign a waiver of liability before you engage in a particular activity will probably assert an assumption of risk defense if you get hurt doing it.
The Effect of a Waiver of Liability
The purpose of having you sign a waiver of liability is to show that you met all the elements of assumption of risk stated above. A defendant in a personal injury case can introduce a waiver of liability into evidence to defeat your claim of liability.
Limitations of a Waiver of liability
Maryland waivers of liability do have certain limitations, including:
- Ambiguous language can render a waiver of liability unenforceable.
- A waiver of liability cannot relieve a defendant of liability for willful, wanton, or reckless behavior, as a matter of Maryland public policy.
- Unequal bargaining power between the parties can render a waiver of liability unenforceable because courts see it as not truly voluntary.
- Some waivers of liability are unenforceable as a matter of public policy. Common carriers and public utilities cannot limit their liability, for example.
- A commercial enterprise cannot limit its liability to a minor child.
Other limitations are arguable as well. Someone might, for example, lack the mental capacity to understand the contents of a waiver of liability.
Express Consent vs. Implied Consent
A waiver of liability is not an absolute necessity for winning an assumption of risk defense. Both express consent and implied consent can support an assumption of risk defense, and a waiver of liability represents express consent to undertake the risk in question. Voluntarily engaging in an obviously dangerous activity, such as skydiving, can constitute implied consent, with no waiver of liability necessary.
The Burden of Proof
Normally, it is the victim who must prove a personal injury claim. It is not the responsibility of the defendant to prove that they are not liable for the injury. Assumption of the risk, however, is an affirmative defense. That means that once the victim has introduced enough evidence to establish their claim, then the burden of proof shifts to the defendant to initiate an assumption of risk defense and then prove it.
The applicable standard of proof (known as the “standard of review” in legal terminology) is a preponderance of the evidence. This standard is much easier to meet than the “beyond a reasonable doubt” standard used in criminal prosecutions. A preponderance of the evidence is simply enough evidence to convince the jury that the elements of the assumption of risk defense (stated above) are present. You could say it is a “51%” standard.
Maryland is one of only four states that apply the draconian “contributory negligence” standard to personal injury claims. Under this standard, the defendant is not liable if the victim contributed even 1% to their own injuries.
The difference between contributory negligence and assumption of the risk is that contributory negligence defeats liability because it is a cause of the accident, while the assumption of the risk defeats recovery because it is a previous abandonment of the right to seek liability for any accident that might occur.
Contact a Personal Injury Lawyer
If the defendant in your case asserts an assumption of risk defense, you could be in a fight. Don’t fight alone – you need the legal representation of an experienced personal injury lawyer.