July 25, 2017

Is Assumption of Risk an Affirmative Defense?

Affirmative DefenseThe assumption of risk is a legal term, specifically under the law of torts which is a defense, an affirmative one, having the capacity to reduce the right to recovery of a plaintiff against the defendants who are negligent. It is a legal doctrine according to which a person can relieve someone from the obligation of any act towards themselves, in advance, with care. The first person could also accept the chance of injury later.

This type of a defense is generally used in cases of personal injuries, where the people could argue about how they are not supposed to pay for the injuries borne by the plaintiff. The basic essence of assumption of risk is seen when the plaintiff understands the risk involved with the injuries, and the plaintiff still agrees to take on those injuries and the risks. Therefore, the defendant must not be held as responsible for any kind of damages that have been faced by the plaintiff. To make sure there is an assumption of risk involved, the defendant must make sure:

The plaintiff knows about the risks involved or the injury involved/suffered.

The plaintiff took upon themselves the dangers, voluntarily.

Usually, in court proceedings, the court of law recognized the assumption of risk in both terms- expressed as well as implied.the expressed assumption is the one in which a plaintiff states that he is taking the onus of the injury and risk involved, explicitly. This is either done in writing, or in the form of a contract. In some cases, this can be done as a verbal agreement. On the other hand, the implied assumption is the one that is acted upon by the plaintiff in a way through which he could understand the risks involved but still takes them anyway. This form does not really have any involvement of statements, and therefore can be difficult when it comes to proving, by the defendant.

No matter what, there are certain forms of defenses when it comes to a risk of assumed nature. The injury that the plaintiff actually suffers, for example, must be of the same nature that was already assumed by them. This can be further explained through an example- if a person agrees for paragliding, the person must be acquainted with all kinds of risks involved with the same. No matter what happens later on, when the paragliding is actually going on, and if the plaintiff does suffer any form of injury, the plaintiff cannot sue the necessary authority for compensation of any kind, because the risk was of an assumed nature.

The assumption of risk begins when the plaintiff has the knowledge of what is to come next but goes on anyway. They know what could be expected out of a particular situation, and also the situation is of a foreseeable nature, yet they voluntarily assume the type of risk involved and go on with it.