Rochester, New York, Personal Injury Lawyers: What Is The Assumption Of Risk Defense?

If Another Person’s Negligence Caused Your Injury, You Deserve the Best Representation, Even When the Defense Claims You Knew the Risks.

Man Parachuting The aftermath of a serious Rochester accident can be catastrophic. Under New York State law, you could be entitled to significant compensation for your damages. However, anyone who files a personal injury lawsuit must demonstrate that another person’s misconduct caused their injuries. While proving that a defendant had a legal duty of care is necessary to secure recompense, proving negligence can be challenging, especially if you knew that a property, product, or activity had inherent risks.

The assumption of risk is a common form of affirmative defense, in which an accident victim’s ordinary right to recompense could be negated if the plaintiff willingly exposed themselves to danger. This defense is often employed in premises liability claims, amusement park lawsuits, and athletics injury cases. While New York State recognizes the assumption of risk defense as a viable and valuable counter to frivolous litigation, it does not preclude genuine accident victims from obtaining the compensation they need to recover from a serious and life-changing injury. Unfortunately, businesses often try to use this defense to evade accountability for obvious wrongdoing.

The Dietrich Law Firm P.C. has spent years advocating for the rights of our clients across Rochester and Western New York. We understand that accidents do not always have clear-cut or obvious causes. After all: even if a sport or property has some inherent hazards, other people still must minimize its potential harms. If an individual, business, or municipal corporation abrogated its duty to protect you from danger, we could help you obtain the compensation you need and the justice you deserve. Please send us a message online or call us at 585-939-3939 today to discuss your legal options for relief.

The Assumption Of Risk In Rochester Personal Injury Claims

The “assumption of risk” is a legal doctrine used both by New York State courts and the federal judiciary. This doctrine is considered an affirmative defense. An affirmative defense is an argument that, if found credible, could negate civil liability for what might otherwise be considered misconduct. When a personal injury defendant alleges that an injured person assumed risk, they must demonstrate that:

  1. The plaintiff knew there was a risk of injury or harm;
  2. The plaintiff voluntarily accepted the risk; and
  3. The plaintiff’s acceptance of the risk caused their accident injuries.

New York State broadly recognizes two types of assumed risk:

  1. Express Assumption of Risk; and
  2. Implied Assumption of Risk, which may be primary or secondary.

Depending on the circumstances of an accident injury, a successful assumption of risk defense could prevent a personal injury plaintiff from recovering any damages for their injuries. While the assumption of risk can be a potent defense against premises liability claims, athletics injury cases, and product liability allegations, an experienced attorney could bolster your chances of making a successful recovery.

Our attorneys are committed to providing our clients with unparalleled personal injury service. Since our founding in 2005, the Dietrich Law Firm P.C. has obtained more than $175 million in damages for our clients. We have been recognized as an American Institute of Personal Injury Attorneys 10 Best Personal Injury Law Firm because we fiercely advocate for our clients’ rights against all odds. Even when the defendant is unwilling to admit fault, we pursue every available legal strategy to secure the relief you deserve. Please call us today at 585-939-3939 to schedule your free, no-obligation consultation.

Understanding The Different Types Of Assumed Risks

A Rochester personal injury defendant could claim they are not civilly liable for damages by using the following defenses:

  1. Express Assumption of Risk: Express assumption of risk occurs when the plaintiff, or accident injury victim, signs a contract informing them of potential dangers and agrees to waive the defendant’s liability for the risks inherent to a premise, product, or activity.
  2. Primary Implied Assumption of Risk: Primary assumption of risk occurs when the plaintiff willingly engages with a known or inherent risk.
  3. Secondary Implied Assumption of Risk: Secondary assumption of risk occurs when the plaintiff is informed of a risk but voluntarily engages in a potentially hazardous activity despite the warning.

Construction Site Sign The assumption of risk doctrine is effectively a codified form of accountability: legislators believe that when an individual knowingly exposes themselves to danger, they should not be allowed to offload the costs associated with the resulting injuries. However, the assumption of risk is not a failsafe defense. Individuals and businesses still have a legal duty of care to friends, consumers, and the general public. Even if a defendant discloses that a product, property, or activity has inherent dangers, they could still be held liable for damages if their conduct was grossly negligent.

The Dietrich Law Firm P.C. has helped countless clients overcome unfair allegations relating to the assumption of risk. We have seen first-hand how defendants’ negligence can exacerbate the risks associated with an inherently hazardous activity or dangerous environment. Please call us at 585-939-3939 to speak to a professional Rochester personal injury lawyer and begin exploring your legal options for recovery.



How a Rochester Personal Injury Attorney Could Help You Overcome an Assumption of Risk Defense

If you, or a loved one, have sustained serious injuries in a Rochester accident that was not your fault, you could be entitled to significant compensation through an insurance settlement or personal injury lawsuit. While the defendant might claim that you assumed risk by signing a waiver or ignoring a warning, the burden of proof is on them. They must demonstrate that:

  1. You were aware, or should have been aware, of the injuries associated with a particular place, product, or activity;
  2. You voluntarily confronted a known or inherent risk; and
  3. You would not have been injured if you had not accepted and engaged with the risk.

The Dietrich Law Firm P.C. could help you overcome an assumption of risk defense by:

  1. Analyzing the Contract: Signed contracts and waivers are not always legally enforceable. A business cannot demand that a contract be upheld if the plaintiff lacks the legal capacity to sign it or if the contract contains provisions that contradict state law, federal law, or public policy. Furthermore, a contract cannot shield a business or other entity that inflicted injury through gross negligence or an act of overt recklessness.
  2. Investigating the Accident: Accidents have a variety of causes. If you have been injured at a go-karting venue, you might not be able to hold the business liable for damages if you signed a contract stating that you understand the risks inherent to go-karting. However, the go-karting company still has a responsibility to maintain its vehicles and provide a reasonably safe venue. Our attorneys could investigate the accident to determine if the defendant’s history of negligence significantly increased the likelihood of injury.
  3. Considering the Circumstances: An individual defendant’s misconduct could unnecessarily endanger others. An athlete may understand that their sport has an inherent risk of danger. However, another competitor who behaves in an unsportsmanlike manner could be responsible for damages if they breach the rules of the sport or venue to inflict injury.

Unlike some attorneys, Jed Dietrich, Esq., does not shy away from challenges. If the defendant tells the insurance adjuster, the judge, or the jury that you assumed risk by partaking in an inherently dangerous activity, we will assess the facts of your accident to determine who should be held liable. Even if you were partially responsible for your accident and injuries, we could still help you negotiate a fair and equitable settlement. Please send us a message online or call us at 585-939-3939 to schedule your free consultation.

Call the Dietrich Law Firm P.C. immediately at 585-939-3939 so that our aggressive, tenacious, and hardworking personal injury lawyers can fight to obtain the best result for your personal injury claim in Rochester, New York. We are available 24 hours a day, 7 days a week, and there is never a fee until we WIN for you!

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