Jason Stephens | March 7, 2022 | Texas Law

Assumption of the risk is one of many defenses that a defendant might assert to deny liability for a personal injury claim that you file against them. It is an “affirmative defense”, meaning that it is the defendant, not you, who bears the burden of proving all of the legal elements that make up the defense. This defense asserts that the defendant is not liable for your injuries if you understood the risks of the activity but ‌chose to participate anyway.

The assumption of risk defense makes it possible for people to operate businesses that involve high-risk activities, such as bungee jumping, rugby, or horseback riding. The assumption of risk defense can also protect a defendant from liability to someone who suffered an injury while trespassing, for example. Unfortunately, defendants often attempt to use this defense to escape liability for their genuinely wrongful conduct.  

Elements of the Assumption of Risk Defense

Texas law is relatively strict in the way it treats this defense. Technically, Texas has done away with the standard conception of the defense and only allows it in the form of “express assumption of the risk.” This is as opposed to other jurisdictions where an implied assumption of the risk can exist. To prevail in an assumption of risk defense in Texas, the defendant must prove that:

  1. The activity that you engaged in was inherently dangerous (skydiving, boxing, mountain climbing, etc.) The activity doesn’t have to be a sport.
  2. You were actually aware of the risks inherent in the activity in advance.
  3. You gave clear oral or written consent to participate in the activity.
  4. You voluntarily engaged in the activity despite knowing of its risks.

If the defendant can prove all elements except element (3), a Texas court might simply apportion liability between you and the defendant, rather than completely deny you compensation. 

Examples of Claims That Might Trigger an “Assumption of Risk” Defense

The following is a list of a few of many possible circumstances that might trigger an “assumption of risk” defense:

  • You file a medical malpractice lawsuit over an unfavorable medical outcome. The defendant might assert that the risks of the procedure were unavoidable and that you signed an “informed consent” form before the procedure.
  • You lose your hand in a wood chipper accident and sue the manufacturer for product liability. The manufacturer might respond that the accident was the result of an unavoidable risk of using a wood chipper, of which you were already aware.
  • You sue a boxer for injuring you in a boxing match. The boxer might produce the agreement that you signed to schedule the fight (to prove consent). An assumption of risk defense might fail if you can prove that the other boxer tampered with their gloves.

Ultimately, the validity of an “assumption of risk” defense is a question of fact that juries decide.

Proving Assumption of the Risk

There are many ways of gathering evidence to prove assumption of risk, including:

  • Having you sign a waiver of liability that clearly lists the dangers of the activity in advance.
  • Erecting a sign (“Beware of Dog”, for example) on fenced-in private property.
  • Printing the risks of an activity on the back of an admission ticket.
  • Verbally informing you of the risks of the activity before allowing you to participate.

The question, under Texas law, is not whether the victim should have known of the risk, but whether they actually knew of it. Fine print on the back of an admission ticket, for example, might not be enough to prove anything. After all, who reads the fine print on the back of an admissions ticket? Verbal warnings might also be ineffective because they can be difficult to prove.

Protect Your Personal Injury Claim Against Evasive Defendants

If you suffered a personal injury due to someone else’s wrongdoing, you need to assert your claim quickly. Be aware, however, that the defendant might assert a persuasive defense such as assumption of the risk. A skilled personal injury lawyer can help you defeat such attempts to evade liability.
Don’t worry about money. Almost any personal injury lawyer will charge you nothing, either in legal fees or expenses, unless they win your case. If they win, your fees will equal a pre-agreed percentage of whatever amount you won.

Contact Our Personal Injury Law Firm in Fort Worth, TX

If you’ve been injured in an accident in Fort Worth and need legal help, contact our Fort Worth personal injury lawyers at Stephens Law Personal Injury | Wrongful Death | Truck Accidents to schedule a free consultation.

Stephens Law Personal Injury | Wrongful Death | Truck Accidents
1300 S University Dr # 300
Fort Worth, TX 76107
(817) 420-7000