One of the most common defenses in personal injury lawsuits is that the injured party “assumed the risk” of potentially being injured through his or her willing participation in an activity that is inherently dangerous or that he or she knew could result in injury.
This defense is most successful when used in certain types of personal injury claims, particularly those in which injuries occurred during an active pursuit, like playing sports or attending sporting events.
In order for the assumption of risk argument to be a successful defense, the injuries the claimant suffered must be on par with the typical level of risk that is associated with the active pursuit in question.
In other words, if the claimant was injured by being struck in the head by a foul ball while attending a softball game, then the assumption of risk argument could potentially be successful, as this type of injury is considered an inherent risk associated with attending sporting events of this nature.
If however, the claimant was injured because of faulty seating at an arena in which a sporting event was held, the assumption of risk defense would not apply, as the risk of such an injury is not inherent to the attendance of a sporting event.
Assumption of risk arguments also apply to cases in which the claimant was injured while actively participating in an inherently risky activity. For example, if injuries are suffered while rock climbing, and due to regular actions involved in the sport, then the assumption of risk defense could potentially apply to the case.
In other words, if the claimant was injured while climbing at an indoor rock climbing establishment and later files a claim against the establishment, the defendant could argue the injured party understood and accepted the assumed risk of participating in the activity. If, on the other hand, the injured occurred due to faulty equipment, then the assumption of risk argument would not apply.