“He assumed the risk.” It is a phrase that we hear both colloquially and in the legal sense, but what does it really mean? In a civil lawsuit, the plaintiff is the person who is claiming the defendant caused injury to them in some way. Assumption of the risk is a defense that the defendant can use to avoid responsibility for their wrongdoing. The defense implies that the plaintiff knew that there was a chance of injury or that the plaintiff consented to it and, therefore, contributed to their own injury.
Massachusetts, like many states, does not allow for the use of assumption of the risk in general negligence cases. Negligence at its most basic form means that someone had a duty to someone else to act reasonably, they failed to do so, and this caused injury and damage to another. Negligence means that a defendant failed to act reasonably in a specific set of circumstances, and this cannot be ignored even if the plaintiff may have known that there was a possibility that an injury could occur. The idea is to ensure that negligent individuals and entities are held responsible for their actions. With assumption of the risk, nearly any act of negligence could be explained away simply by noting the plaintiff’s participation in the activity or presence at the site where the injury occurred.
There are limitations on negligence, in that if a plaintiff is found to be at fault more than the defendant was at fault, their claim may be barred. This is the case under the theory of comparative negligence, which allocates the amount of responsibility each party should have for an injury. It allows a plaintiff to shoulder some of the responsibility without allowing the defendant to escape without any punishment what so ever. Comparative negligence is a very common defense that is similar to an assumption of the risk in that it places some of the blame on the plaintiff. An example of comparative negligence would be if a drunk defendant caused a car accident, but the plaintiff was distracted because she was talking on a cellular phone. The court may determine that the plaintiff was 10% responsible for the accident, but that the drunk driver was 90% responsible. If this were the case, the plaintiff’s monetary recovery would be capped at 90%, given her own culpability.
Besides general negligence cases, assumption of the risk may be used as a defense in product liability matters, medical malpractice cases, and virtually any activity involving a waiver (i.e. boating trip, skydiving, skiing). Assumption of the risk is a controversial defense in cases involving wrongdoing, and is seldom used in any of these or similar contexts.
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Regardless of the manner in which you were injured, commencing litigation can be a frightening and intimidating process. Our knowledgeable personal injury attorneys at John J. Sheehan have experience navigating all varieties of personal injury claims. We are dedicated to ensuring you receive the compensation you are entitled to by the law while ensuring you understand what is going on with your case every step of the way. If you reside in the greater Boston area and have questions about your legal rights, contact John J. Sheehan today.