A personal injury claim in Texas can come with many potential complications, including strategies used by insurance companies to avoid paying. One tactic is denying a claim based on a claimant’s alleged “assumption of risk.” Understanding what this means or contacting a San Antonio personal injury lawyer can help you protect your legal rights in this situation.
What Is Assumption of Risk?
Assumption of risk in personal injury law is a doctrine that claims that a plaintiff (injured party) knowingly and willfully engaged in activities with inherent risks involved. It is a liability defense tactic that alleges that the claimant knew or should have known of the dangers associated with a risky activity but voluntarily chose to participate anyway.
The assumption of risk defense is only available if the insurer can prove voluntary participation in the dangerous event or recreational activity, meaning the victim willingly chose to engage in the activity while fully understanding the foreseeable risk of harm. Examples of high-risk activities that typically involve an acknowledgement of risk are jet skiing, rock climbing, bungee jumping and skydiving.
How Can an Insurance Company Use Assumption of Risk Against You?
When an insurance company or defendant (accused party) uses the assumption of risk defense, it can take away a plaintiff’s ability to recover financial compensation in a personal injury claim. If the defense proves that the victim was injured while knowingly participating in a dangerous activity, this can place some or all of the fault for the injury on the plaintiff, affecting his or her financial recovery.
Texas uses a modified comparative fault system (Texas Civil Practice and Remedies Code § 33.001) with a 51 percent bar. This law allows an injured accident victim to still recover partial financial compensation for an accident even if he or she contributed. However, the victim must not be found more than 50 percent at fault, or else he or she loses the ability to recover any compensation at all.
If an insurance company successfully uses the assumption of risk defense, this could allocate a percentage of fault to the claimant for knowingly engaging in a dangerous activity. The victim’s settlement would then be reduced by a matching percentage – or denied completely if assumption of risk places 51 percent or more of the fault with the claimant.
It is important to discuss your particular case with a personal injury lawyer in Texas to find out how assumption of risk may affect your claim. Don’t assume you do not have a case if you were participating in a risky sport or activity at the time of your injury. You may still have a case, depending on the circumstances.
To use this affirmative defense, an insurance company must prove several legal elements. They must demonstrate that you were aware of the specific risks involved in the activity and knowingly accepted them when you participated. In addition, assumption of risk must be a contributing factor to the injury you suffered.
Even if you assumed certain risks, this does not bar you from a financial recovery in the face of gross negligence. If the other party involved in your case displayed a reckless or wanton disregard for the safety of others (exceeding ordinary negligence), this is gross negligence and can qualify you for compensation regardless of any assumption of risk.
How a Personal Injury Lawyer in San Antonio Can Help
Assumption of risk is a complicated legal doctrine that can have various effects on a Texas personal injury claim. If you believe that your case may involve the assumption of risk defense, contact an attorney as soon as possible. Hill Law Firm Accident & Injury Lawyers offers free initial case consultations at no obligation to hire our law firm. We can help you understand how this defense may affect your particular claim to compensation.