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Secondary Assumption of Risk – Everything you Need to Know

Secondary AssumptionYou can get hurt because of someone else’s wrongful conduct in a virtually infinite variety of ways. Oftentimes, you have no control over those circumstances. A drunk driver’s car slams into yours, for example, even though you drive defensively and follow the rules of the road.

Sometimes, however, you choose to put yourself in a potentially dangerous situation. Lawyers generally refer to that choice as an “assumption of risk”—you recognize that you could get hurt by engaging in a particular activity, like a football game, ATV adventure or ski trip, but you go ahead with it anyway because you believe the benefits outweigh the risks.

Does assuming a risk of getting hurt in a particular situation mean that you lose your rights to sue if you do get hurt? The answer depends on a legal doctrine known as the secondary assumption of risk.

Overview of Assumption of Risk Principles

The law recognizes two basic ways you can acknowledge the potential danger of an action you are about to take:

  • Express assumption of risk happens when through your words or (more often) by signing a waiver or similar contract, you clearly acknowledge that you recognize a danger of a particular activity and assume full responsibility for the risks involved. The waiver they make you sign at an indoor trampoline park before you start bouncing is an express assumption of risk, for example.  However, sometimes these recreational waivers may not be enforceable.
  • Implied assumption of risk happens when you demonstrate an understanding of risks involved in an activity through your conduct. Wearing a batting helmet when you step up to the plate in a backyard softball game implies that you assume the risk of getting hit with a pitch, for instance.

As a baseline rule, people who get hurt after having expressly or impliedly assumed the risk of the danger that gets them hurt, cannot seek compensation from anyone else for that injury.

This rule lines up with how most of us live our everyday lives. We understand that if you know something is dangerous before you do it, and you do it anyway, then if you get hurt because of that danger, it’s your fault. You have no one to blame for your injuries but yourself.

Unless, that is, you actually do have someone else to blame for your injury.

Primary vs. Secondary Assumption of Risk

Lawyers distinguish between two types of assumption of risk. “Primary” assumption of risk acts as a complete bar to seeking compensation for an injury. “Secondary” assumption of risk, however, does not. Let’s take a look at each.

Primary Assumption of Risk

The primary assumption of risk happens when a person expressly or impliedly acknowledges an inherent danger in an activity or action, and goes ahead with that activity or action despite the danger.

For example, suppose you decide to play in a touch football game with some friends. You know, of course, that a game of touch football comes with the inherent danger of suffering some bumps, bruises, or ankle sprains.

Acknowledging the inherent danger of minor injury and playing anyway constitutes your primary assumption of risk. If you suffer one of those minor injuries, you likely can’t sue anyone for them.

Secondary Assumption of Risk

Choosing to assume a risk does not, however, necessarily let someone off the hook for engaging in careless, reckless, or intentionally harmful conduct that injures you. Sometimes, you can get hurt while engaging in an inherently dangerous activity not simply because of that inherent danger (or not because of that inherent danger at all), but because of the wrongful actions of someone else in connection with that activity.

Going back to the touch football example, in addition to the inherent dangers of minor injury that you assume, you also recognize the risk that one of the other players might get a little too aggressive and do something that hurts you. Overly aggressive play goes against the rules of touch football, so it’s not a danger you signed up for. But you know it could happen, and if it does, that you could end up with a broken bone, head injury, or worse.

That is your secondary assumption of risk. You acknowledge the danger posed by someone else’s potential wrongful conduct in connection with an activity, and go forward with the activity anyway. If another player engages in those wrongful actions and injures you, then you may have the right to sue that person for compensation.

How the Law Balances Secondary Assumption of Risk

Courts wrestle every day with how to do justice in cases involving an injured person’s secondary assumption of risk. On one hand, a person assumes a risk of injury stemming from someone else’s negligent or intentionally harmful conduct. On the other hand, that other person has a duty not to engage in negligent or intentionally harmful conduct.

Who should win out?

Joseph Benson Blog
Personal Injury Lawyer, Joseph Benson

Generally speaking, courts try to strike a balance between a secondary assumption of risk and the wrongful conduct that causes an injury by weighing (or “comparing”) the degrees of fault involved. In the most basic sense, the law assigns a percentage of fault for an injury to each person, and adjusts the amount of damages payable to the injured person accordingly.

For example, in the touch football example, a court might weigh how clear it was to you that another player might go too far against just how far over-the-line the other player went in hurting you.

The court might assign you 45 percent of the blame for an injury, and the other player 55 percent, for instance, if you both jumped for a pass and the other player elbowed you in the face while reaching for the ball. But, the court might assign just 5 percent of the fault to you, and 95 percent to the other player, if the other player outweighed you by 100 pounds and made a flying tackle on you from behind when you weren’t expecting it.

You Have Rights, Even if You Knew the Risks

The rules governing the assignment of fault for injuries in the secondary assumption of risk vary from state-to-state, so speak with an experienced local personal injury lawyer about any injury you suffer while engaging in an activity you knew in advance might put you in danger.

To learn more, contact a skilled personal injury attorney today for a free consultation.

Benson and Bingham