Assumption of Risk
Definition
Assumption of risk is a legal defense that bars or limits recovery when an injured person voluntarily and knowingly exposed themselves to a known danger. Under this doctrine, a person who understands and appreciates a specific risk and voluntarily chooses to encounter it cannot later sue for injuries that result from that known risk. The defense can be express (written agreement) or implied (conduct demonstrating acceptance of risk).
How It’s Used in Personal Injury Cases
Defendants frequently raise assumption of risk in cases involving recreational activities, sports, and inherently dangerous pursuits. Insurance companies may argue that you cannot recover because you voluntarily participated in a risky activity. However, assumption of risk has significant limitations—it only applies to known and appreciated risks, not to unexpected dangers or negligent conduct beyond the inherent risks of an activity. Texas courts generally fold assumption of risk into the comparative negligence analysis under Chapter 33.
Practical Example
Lisa went skiing at a resort and was injured when she hit an unmarked hazard on the slope. The resort claimed assumption of risk, arguing skiing inherently involves falling. However, the specific hazard was a maintenance hole that the resort negligently left unmarked—this was not an inherent risk of skiing that Lisa knowingly accepted. The assumption of risk defense failed because the danger was not a known, inherent risk of the activity but rather resulted from the resort’s negligence.
Why It Matters to Your Case
Understanding assumption of risk helps you evaluate whether participating in an activity affects your legal rights. Waivers and liability releases attempt to establish express assumption of risk, but they may be unenforceable if they violate public policy or if the injury resulted from the defendant’s gross negligence. The defense applies only to risks you actually knew and voluntarily accepted, not to hidden dangers or negligent conduct.
Key Takeaway
Assumption of risk may limit recovery for known dangers you voluntarily accepted, but it doesn’t protect defendants from liability for negligence or hidden hazards beyond the inherent risks of an activity.