Letâ€™s look at a hypothetical situation. You are out rock climbing with some friends, and during the course of that outing, you fall and injure yourself. Now you want to sue the park or site where the accident occurred, claiming that they were negligent in maintaining the property or warning customers of unsafe conditions. The managers, however, argue that you assumed the risk, meaning that you knew about the risks inherent in rock climbing but went ahead anyway. They also suggest that if you did not know about the risks, then you should have.
Assumption of risk is one of the most commonly presented defenses in personal injury lawsuits. To be successful, the property manager must prove the following:
- You knew about the risks involved in the conduct or activity that caused you to be injured AND
- You voluntarily accepted the risk, which was obvious to any reasonable person
If the property manager can prove that you assumed the risk, then you will likely be unable to recover damages, even if you succeed in demonstrating that they were negligent or careless.
Express vs. implied assumption of risk
Risk can be assumed either expressly – that is, you actively affirmed your acceptance- or implied it through your words or actions.
The most common way to expressly assume risk is to sign a waiver or agreement. In New York, many ski resorts and skydiving companies will require you to sign a waiver acknowledging that you are aware of and accept the risks inherent in these activities and waive your right to sue the managers if you hurt yourself. Once you do so, in most instances, you will be bound by the agreementâ€™s terms and unable to file a personal injury lawsuit.Â There are rare exceptions, such as a waiver that contradicts public policy or an act of gross or malicious negligence, such as a hostile employee deliberately tampering with your ski equipment, but in general, these waivers can be difficult to challenge.
Implied assumption of risk is conveyed by what you say and/or do. For example, if a ski resort employee warns you that certain slopes can be dangerous because they are particularly steep and you verbally or physically (e.g. nod your head) indicate that you understand, the resort can later argue that you assumed the risk of injury if you used those slopes. For this reason alone, be careful with both your body language and the words you use when someone advises you about dangerous conditions, lest you imply acceptance of risk without realizing it.
If you have been injured while participating in a dangerous sport or other high-risk activity, then contact a New York personal injury attorney immediately. Your attorney can help you determine if assumption of risk was involved and advise you on how to maximize your chances of getting the financial compensation you need. Jayson Lutzky is a New York accident lawyer who has helped past clients obtain millions of dollars in compensation for past and future pain and suffering, medical bills and lost wages. Call 718-514-6619 to set up a free in-person initial consultation with the attorney. Visit www.MyNewYorkCityLawyer.com to learn more about our office.