Assumption of risk refers to an individual’s knowledge that an activity or behavior could lead to injury. Insurers might use assumption of risk to reduce or deny a claim if it can establish the plaintiff understood the dangers of an action that caused an injury.
Tennessee law recognizes two primary types of assumption of risk:
- Express assumption of risk
- Implied assumption of risk
What is express assumption of risk?
An individual expressly assumes a risk when he signs a document stating he understood the risks of the activity in question. If the plaintiff signed a release that waived the defendant of liability, it means the plaintiff carries an express assumption of risk.
Express assumption of risk may take the form of an exculpatory clause. An exculpatory clause is a contract, written or assumed, that limits the defendant’s liability.
What is implied assumption of risk?
This is a less straightforward assumption of risk since it does not involve any written agreement. Under this concept, the plaintiff willingly participates in an activity knowing the risk, or the plaintiff’s actions suggest an awareness of the risk.
For example: Sally and Jennifer are at a party. Sally is has been drinking all night, and has begun slurring her words and is having trouble walking. Sally offers to drive Jennifer home, and Jennifer accepts, despite it being obvious that Sally is intoxicated. By getting in the car, Jennifer has taken on the risk of being involved in an accident.
Does that mean I cannot win an injury case?
No. While assumption of risk is a common defense against negligence, it is not a shield for every defendant who failed in his or her duty to provide reasonable protection for the public.
Courts in Tennessee have ruled that the implied assumption of risk is no longer a complete bar to a plaintiff’s recovery of damages. Consider our drunk driving example above: in the past, Jennifer would have been unable to recover compensation at all for her injuries if an accident occurred. However, the courts now hold that you can recover compensation even if you implied that you understand the risks involved in the activity.
Still, Tennessee injury law observes the system of comparative fault, which assigns damages in injury cases based on the percentage of fault shared by the defendant and plaintiff. This means that while your implied assumption of risk does not bar you from recovering compensation, you will likely face a reduction in the available compensation (e.g., you got into a car with your drunk friend, the defense might argue that makes you 40 percent liable for your injuries).
To win against this defense, you will need a lawyer with experience fighting against assumption of risk claims. The Law Offices of Ogle, Elrod & Baril PLLC is here to help you get the compensation you deserve. Call at 865-546-1111 for a free consultation.