When you decide to play a sport, take a ski lift, climb up a steep cliff, or engaged in some other inherently or obviously dangerous activity you (legally speaking) assume a certain amount of risk. Therefore, in the United States the assumption of risk doctrine can sometimes be used as a legal defense in personal injury negligence cases. When using this defense, the defendant (i.e. the person being sued) is essentially claiming that they should not be held legally responsible for the injuries sustained by the plaintiff (i.e. the injured person who is suing) because the situation that the plaintiff knowingly put himself/herself in was so inherently or obviously hazardous that they must have known of the risks involved but decided to take the chance of being injured anyway. However, it is important to note that the assumed risk doctrine can only shield personal injury defendants from liability if the plaintiff’s injuries were a natural or expected consequence of the dangerous activity that they engaged in. In other words, the defendant can still be held liable if it was his/her negligent act that caused the injury.
Because Mississippi’s assumption of risk doctrine is often confusing we have attempted to shed some light on this particular personal injury defense be answering some frequently asked questions below.
Q: What does a personal injury defendant have to prove in order to prevail under the assumption of risk doctrine?
A: While the answer to this question differs a bit from state to state, according to the Mississippi Law Journal a personal injury defendant in Mississippi needs to be able to establish the following three elements in order to prevail under the assumption of risk doctrine:
- That the injured plaintiff knew that a condition inconsistent with his/her safety existed,
- That the injured plaintiff appreciated the danger of the condition, and
- That the injured plaintiff deliberately and voluntarily chose to expose himself/herself to that danger in such a manner as to register assent on the continuance of the dangerous condition.
Q: I was injured while playing a game of flag football when someone from the opposing team lost his temper and intentionally tackled me rather than pulling my flag. Does the assumption of risk doctrine preclude me from recovering?
A: While you did assume some measure of risk when you decided to participate in the game, the assumption of risk doctrine would probably not prevent you from recovering damages from the man who injured you. This is because a court would likely find that being intentionally tackled during a flag football game is not a natural or expected consequence of agreeing to play the game (i.e. you did not assume the risk of being tackled).
Q: Does signing a liability waiver before participating in a sport prevent me from recovering in a subsequent personal injury lawsuit?
A: While Mississippi waiver law is not crystal clear these days it is important to know that assuming risk by signing a liability waiver does not necessarily mean that you won’t be able to recover personal injury damages. Whether or not a particular liability waiver is enforceable is highly fact specific so the best thing you can do is consult with a local personal injury attorney about your particular case.
Do You Need Legal Assistance?
If you’ve been injured while playing a sport, or while engaging in some other inherently risky activity, don’t mistakenly assume that the assumption of risk doctrine will prevent you from recovering damages in resulting a personal injury lawsuit. If your injury was caused by someone else’s negligent or wrongful act there is a good chance that you are legally entitled to recover compensation for the losses you incurred. To discuss your legal rights and options with an experienced Mississippi personal injury attorney schedule a free no obligation initial consultation with Derek L. Hall, PC, The Heavy Hitter. Contact our Jackson office today by calling (601) 768-8267.