This series will dive into different defense tactics that property owners and their insurance defense team may be able to use during premises liability cases. First up is the assumed risk defense.
Injuries occur on properties often, but the property owner is not liable for all injuries. At times, the injured are responsible for their own actions, thus releasing the property owner from negligence.
Assumed risk: what is it?
When an individual knows the possible consequences and are aware of the risks of their actions, but they continue to do them, it is called assumed risk. If their actions result in injury, they may be held liable for their own actions because the individual had assumed the risk.
Examples of injured individuals assuming risk for their grievances include:
- Entering areas with "enter at your own risk" or "beware of dog" signs
- Partaking in risky activities
- Playing a pick-up sports game
- Injury at a location after signing a waiver stating the risks
How to use assumed risk as a defense
Assumption of risk typically goes to mitigation of damages. However, it can be a useful tool in defending cases.
A defense attorney would have to establish that the plaintiff either had expressed or implied assumption of risk. An expressed assumption of risk occurs when the plaintiff has signed a document or verbally expressed that they acknowledge the risks. Implied assumption of risk relies on the defendant showing that the plaintiff understood the risks before partaking in the activity
It can be difficult to prove a plaintiff's own liability, especially in premises defense cases, but defenders can show they are not negligent. The next in the series will look at another way a property owner can defend against a premises liability case.