Leveraging Assumption Of Risk In Personal Injury Cases: A Comprehensive Guide
Assumption of risk is a legal doctrine that may be used by a defendant in a personal injury case, such as a car or truck accident. An insurance company or other entity that is being sued for financial compensation may try to use the assumption of risk as a way to reduce their liability and the compensation that they may owe you.
How Does Assumption Of Risk Apply To Car Accident Cases?
If the judge or jury determines that you as the plaintiff assumed the inherent risk of driving, the compensation to which you are entitled could be reduced or even eliminated. Your Nevada personal injury attorney will be prepared to guide you through this process and make a strong argument on your behalf.
Personal injury claims rely on allegations of negligence of another person. When it comes to car accidents, common negligent actions that can result in a collision include:
- Criminal speeding
- Driving under the influence of drugs or alcohol
- Reckless driving
- Failure to yield
- Violation of a traffic law
Some negligent actions may be due to human error. In contrast, others are an intentional choice and may be prosecuted as a crime in criminal court, in addition to your personal injury lawsuit in civil court.
Common Negligent Actions Leading To Car Accidents
To prove negligence, your Las Vegas personal injury lawyer will need to prove four elements:
- That the plaintiff owed you a duty of care
- That the plaintiff failed in that duty
- That you suffered injury or loss
- That your damages are the direct result of the plaintiff’s negligent actions
Your car accident lawyer will fight on your behalf to prove your claims. However, the defendant may try to raise the assumption of risk defense to protect themselves from liability. They may argue that you knew the inherent risks of driving and are therefore not liable for your injuries, damages, and losses.
What Are the Different Types Of Risk Assumptions?
There are two main types of risk assumption:
Express Assumption Of Risk
This is when an individual agrees explicitly, usually in writing, to agree to the risk of a particular activity they want to engage in. A common example is signing a waiver before participating in a potentially dangerous activity, such as skydiving or kayaking. Although the express assumption of risk is a common part of many personal injury cases, it does not usually apply to car accidents.
Implied Assumption Of Risk
Even accidents that occur at low speeds can cause severe personal injuries and vehicle damage. If you’ve been injured because another This type of situation is more complicated and nuanced because there is no explicit assumption of risk, but the individual’s actions imply that they understood and accepted the risks that were involved. This could be something as simple as attending a sports game where a ball could fly into the stand or drive a vehicle. Implied assumption of risk is an important part of many car accident cases handled by our Las Vegas car accident attorney.
What Is the Secondary Implied Assumption Of Risk?
In some implied assumption of risk cases, such as driving, the other party owes a
When another party, such as another driver on the road, owes you a duty of care, comparative negligence may apply to your case, allowing you to qualify for some financial compensation even though you accepted the risks. This type of comparative negligence will compare the other party’s negligence against the risk that you took while driving the vehicle, and determine a fair amount of financial compensation for your damages based on the circumstances of the case.
Contact Nevada’s Leading Car Accident Injury Attorneys
Assumption of risk is just one of the many legal issues that may arise in your car accident case. This is where the guidance of an experienced car accident lawyer in Las Vegas can be invaluable to your personal injury claim. Benson & Bingham Accident Injury Lawyers, LLC can provide legal advice, build a strong case on your behalf, and work to prove the extent of your injuries and losses that you sustained in a car accident. Let us handle the many details 0while you focus on your recovery! To learn more about how we can help maximize your financial compensation and provide guidance through the legal process, contact us today to schedule your free consultation.
Frequently Asked Questions About Assumption of Risk and Nevada Car Accident Lawsuits
1. How does “implied assumption of risk” actually affect my Nevada car accident settlement?
Insurance adjusters often try to use this concept to lower the amount they have to pay you. They might argue that by simply getting behind the wheel or driving in heavy traffic, you accepted the dangers of the road. However, there is a massive difference between knowing driving is risky and agreeing to be hit by a reckless driver.
While you do accept some general risks by driving, you are not consenting to another driver’s negligence, such as speeding or drunk driving. If the other driver breached their duty of care (the traffic laws established in NRS Chapter 484B), their argument that you assumed the risk usually falls flat. We fight to ensure the court understands that you never consented to someone else breaking the law.
2. Can I still file a lawsuit if I was partially at fault for the accident?
Yes, but you need to be careful about the percentages. Nevada follows a strict modified comparative negligence rule (NRS 41.141). This means you can still recover compensation as long as you were 50% or less at fault for the crash.
If a jury decides you were 51% responsible—perhaps arguing you assumed a specific risk that contributed to the accident—you are barred from recovering anything. Additionally, your settlement will be reduced by your percentage of fault. If you were 20% to blame, your final payout gets cut by 20%.
3. What is the deadline for filing a car accident lawsuit in Nevada?
You don’t have unlimited time to debate liability or risk. In Nevada, the statute of limitations for personal injury claims is a strict two years from the date of the accident (NRS 11.190). If you miss this window, the court will almost certainly dismiss your case, no matter how clear the other driver’s negligence was.
It takes time to build a defense against “assumption of risk” arguments and gather evidence, so waiting until the last minute is a dangerous gamble.
4. Does the “Discovery Rule” apply if I didn’t realize I was injured right away?
Sometimes, the physical toll of a risk isn’t immediately obvious. Under Nevada’s Discovery Rule principles, the two-year countdown generally doesn’t start until the date you discovered—or reasonably should have discovered—your injury.
This is common with internal injuries or soft tissue damage that appears weeks after the wreck. However, relying on the Discovery Rule is risky and legally complex. The defense will argue you should have known sooner, so it is always safer to seek medical attention and legal advice immediately following the crash.
5. Can my spouse receive compensation for my car accident injuries?
Yes, the impact of a severe accident goes beyond just the driver. If your injuries are serious enough to affect your relationship, your spouse may have a separate claim for “loss of consortium.”
This legal term refers to the loss of companionship, affection, moral support, and intimacy caused by the accident. While not explicitly defined in a single statute, it is a recognized cause of action in Nevada civil practice. If the defense is arguing that you assumed the risk of injury, we often counter by showing exactly how those injuries have devastated not just your life, but your marriage and family dynamic as well.
6. Will signing a waiver always block me from a settlement?
Not necessarily. While “express assumption of risk” (like signing a waiver) is strong evidence, it isn’t bulletproof. In Nevada, waivers can be challenged if they are ambiguous, if the negligence was gross (extreme), or if the injury was caused by something totally outside the scope of what you signed up for.
For example, signing a waiver to drive a go-kart covers normal racing risks, but it doesn’t mean you consented to driving a kart with faulty brakes that the facility knew about. Never assume you don’t have a case just because you signed a piece of paper.
