Petrov Personal Injury Lawyers | May 9, 2023 | Personal Injury
If you file a personal injury claim in Vista, California, you assert that the at-fault party is responsible for an injury that you suffered. Typically, it means they engaged in some sort of misconduct that injured you.
The defendant might counter with an affirmative defense, claiming that for this reason or that, they are not liable for your injuries. Assumption of risk is a popular affirmative defense.
What Is an Affirmative Defense?
If you sue a defendant in court, you must prove your claim based on its legal elements. In a personal injury claim based on negligence, for example, you would need to prove:
- The defendant owed you a duty of care;
- The defendant breached their duty of care;
- You suffered an injury, and;
- The defendant’s breach of their duty of care caused your injury.
There are two ways the defendant might fight back against your claim. First, they might simply try to prevent you from proving the four elements listed above. They win the case if they can prevent you from proving even one of them.
The second way of fighting back, the affirmative defense, is based on the concept of “the best defense is a good offense.” The defendant would assert a claim that, if proven true, would prevent them from bearing liability even if you managed to prove all of the elements of your claim.
As mentioned above, assumption of risk is a popular affirmative defense – though it is only one of many. The defendant must prove any affirmative defense that they assert.
Proving an Assumption of Risk Defense
To successfully assert an assumption of risk defense, the defendant must prove:
- You had knowledge of the risk involved, and
- You voluntarily accepted the risk, either through a specific agreement (a waiver of liability form, for example) or implied by your words or conduct.
The defendant may escape liability if they can establish each of these points.
Waivers of Liability
You have probably signed a waiver of liability before. Liability waivers contain language designed to help the defendant party win an assumption of risk defense in case you suffer an injury engaging in an activity that they sponsored. Your gym membership contract, for example, probably includes a waiver of liability clause.
A court can ignore a waiver of liability clause and hold the defendant liable anyway under the following circumstances:
- The clause was buried in the fine print.
- The defendant’s behavior was illegal.
- The defendant’s behavior exhibited gross negligence, recklessness, or intent to harm you.
- The contract containing the waiver was invalid due to fraud, duress, or failure of consideration.
- Don’t assume that you cannot win a personal injury claim simply because you signed a waiver of liability.
How Comparative Fault May Apply
California’s pure comparative fault system applies when more than one party is at fault for an injury. Suppose, for example, that Party A runs a red light and hits Party B, who was driving with their lights off at night. Party B was injured in the accident.
A court would apportion liability on a percentage basis. Party A, for example, might be 70% liable, while Party B might be 30% liable. Party B may then receive 30% less damages as a result.
Primary Assumption of Risk vs. Secondary Assumption of Risk
In response to comparative fault, which is a relatively new legal concept, California courts have divided assumption of risk into two forms—primary assumption of risk and secondary assumption of risk.
- In the primary assumption of risk, the injury victim is complaining about an injury that resulted from a risk that is inherent in an activity itself. As such, a successful assumption of risk defense by the defendant prevents the victim from recovering any compensation at all. A boxer, for example, cannot sue their opponent for knocking them out.
- In secondary assumption of risk, the injury victim is complaining about an injury that resulted from a risk that is not inherent to the activity. In a football game, for example, you might allege that your opponent injured you by tripping you instead of tackling you. This is an example of secondary assumption of risk, and comparative fault may apply.
Primary and secondary assumptions of risk are not limited to sports. A professional firefighter, for example, assumes a certain risk of injury in a fire.
Contact a Vista Personal Injury Attorney for a Free Consultation
Defeating an affirmative defense is one of those challenges that almost always requires the assistance of a lawyer. Don’t worry – you can afford one, at least if your claim is strong. Most personal injury lawyers work on a contingency fee basis. This means they will not charge you legal fees until and unless they win your case. What do you have to lose?
For more information, please contact the Vista personal injury law firm of Petrov Personal Injury Lawyers to schedule a free consultation today.
We serve in North County, CA and its surrounding areas:
Petrov Personal Injury Lawyers
380 S Melrose Dr Ste. 201
Vista, CA 92081