What is Assumption of the Risk?

Assumption of the risk is a legal doctrine that can be used as a defense in personal injury cases. As a result, it can play a significant role in determining liability and compensation.

Application in Personal Injury Cases

In personal injury cases, defendants (at-fault parties) may use the assumption of the risk as a defense strategy to argue that the plaintiff (injury victim) knowingly and voluntarily took on the risk of a particular activity, fully understanding the inherent danger.

Therefore, the defendant is not liable for any injuries. If a court determines that a plaintiff assumed the risk, it may reduce or even eliminate the compensation they can receive.

Types of Assumption of the Risk

Assumption of the risk can be categorized into two main types:

Express Assumption of Risk

This is when the plaintiff explicitly agrees, often in writing, to assume the risk of a particular activity. For instance, when signing a waiver before participating in a potentially dangerous sport like skydiving.

Implied Assumption of Risk

This is more nuanced and involves a situation where the plaintiff’s actions or behavior demonstrate an understanding and acceptance of the risks involved. For example, attending a baseball game implies an understanding that a ball could fly into the stands.

Are Assumption of the Risk Agreements Legally Enforceable in Nevada?

Assumption of the risk agreements can be legally enforceable in Nevada, but like all legal matters, their enforceability is subject to certain conditions and limitations.

Enforceability Factors

• Voluntary Consent: The plaintiff must have voluntarily consented to assume the risk. If there is evidence of coercion, misrepresentation, or lack of understanding, the agreement may not be enforceable.
• Knowledge of Risks: In Nevada, assumption of the risk generally applies to risks that are inherent in an activity, such as injuries from skiing or participating in adventure sports. Risks that are not inherent to the activity and arise from the negligence of the provider may not be covered by an assumption of the risk agreement.
• Clear and Unambiguous Language: The language used in the agreement must clearly outline the risks involved and the acceptance of those risks by the party. Vague or ambiguous terms can render a contract unenforceable.
• Public Policy Considerations: Agreements that violate public policy or involve illegal activities are not enforceable. For example, a waiver that absolves a party of liability for intentional misconduct or gross negligence might be deemed against public policy.
• Minors: Agreements signed by or on behalf of minors may face additional scrutiny, and certain waivers might not be enforceable against minors or their guardians.

Can I Still Sue for an Injury if I Have Assumed the Risk?

Assuming the risk does not necessarily eliminate your right to sue. However, if you signed a waiver or expressly agreed to assume the risk, it might be more challenging to pursue a lawsuit than if the assumption of risk was implied by the nature of the activity. Here are additional factors on how the concept might impact your ability to sue:

Understanding of the Risk

If you fully understood and voluntarily accepted the risks associated with an activity, it might be more difficult to hold the other party liable for injuries resulting from those known risks.

Gross Negligence or Intentional Misconduct

Assumption of the risk typically does not cover more egregious behaviors. Therefore, you might still have a valid claim if the other party’s conduct was grossly negligent or intentional.

Validity of the Agreement

If the agreement to assume the risk was invalid (e.g., it was unclear, you were coerced, or you didn’t fully understand the risks), you may have grounds to sue for an injury.

In Nevada, the principle of comparative negligence also applies to personal injury cases. Under this law, you can still recover compensation if you were partially at fault for your injury, as long as you were no more than 50 percent to blame. Therefore, the other party might still be partially liable if they were also negligent, even if you assumed the risk.

Given these complexities, it is critical to consult a Las Vegas personal injury attorney. They can review the specific facts of your situation, including any written agreements, and provide guidance tailored to your case.