Assumption of Risk

An assumption of risk is a legal doctrine in personal injury cases, where the plaintiff’s ability to recover is limited because they accepted the known dangers associated with an activity or product. Under the Federal Rules of Civil Procedure, assumption of risk is an affirmative defense, wherein an injured party has relieved the defendant of a duty of care.

A defendant must demonstrate that two things are true in order to make an assumption of risk claim:

1. That the injured party knew of the risk involved; and
2. That the injured party accepted the risk, either expressly or as implied by their words or conduct

There are two types of assumption of risk defenses:

1. Express assumption of risk — This is usually achieved through a signed waiver. As long as the waiver does not violate public policy, you cannot make a claim for your injuries if you have a contractual agreement giving up that right. For example, if you go skydiving, you’ll likely have to sign a waiver which states that you understand that jumping out of a plane can result in serious injury or death.
2. Implied assumption of risk — This is achieved when your actions or behavior demonstrate that you were aware of the dangers of an activity and proceeded anyway. This is often the case in dangerous activities, or dangerous products such as power tools. A famous example of implied assumption of risk is Beninati v. Black Rock City, LLC (2009) 175 CA4th 650, wherein a man who was burned at the famous Burning Man Festival did not receive compensation because he assumed the risk of being burned merely by being at the festival.

In assumption of risk defenses, the plaintiff had to have been warned of, or been reasonably able to foresee, the specific danger inherent to the activity or product. For example, say your hands were burned by a chemical cleaning solution. If the product’s labeling warned against ingesting the chemical, but did not warn against skin contact, then the product manufacturer would not be able to raise an assumption of risk defense.

Assumption of risk defenses are also commonly broken down into two further categories: primary and secondary.

In primary assumption of risk, the defendant does not owe the plaintiff any duty of care. A clear example is a football player who is injured while being tackled. They cannot sue the other player or team or the league for their injuries, as merely by agreeing to play they accepted the obvious, known risks involved in playing a high-contact sport.

In secondary assumption of risk, the defendant does owe the plaintiff a duty of care, and the defendant breached that duty, but the plaintiff encountered and was aware of that danger. For example, a contractor gives one of their employees a worn-down ladder to use, and warns the employee to be careful as the ladder may be dangerous. If the employee is injured while using the ladder, the employer could make a secondary assumption of risk defense. These cases are usually rolled into comparative negligence, where each party is liable for a portion of the damages.

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Juanita Matthews

Year of 2023

This law firm is absolutely amazing. They took on my case, when nobody else would! They fought hard for me when it seemed there was no hope. They kept me informed and always asked for my input before making decisions on my case. Gary puts himself into every case unlike most law firm owners. Gary and his team really care about every one of their clients, and fights hard to get you a fair settlement. They actually won my case out of court, and then reduced my fees to make sure I could get my car fixed and be able to get back to some normality. I would recommend Burger Law over and above any other firm! If you go somewhere else you aren’t getting the best!

Shaunda S.

7 months ago

I am very happy with the staff at Burger Law. I mostly worked with Michael Sheldon, and he did an amazing job. I trusted him completely with my case, and he did not disappoint. I would definitely recommend this team if your ever in need of good attorneys.

Emelia M.

3 months ago

Burger Law Firm is fantastic. Laura and Genevieve were so amazing and helpful throughout the entire process. They helped me with my personal injury case every step of the way and succeeded at getting me the results I desired.

Helen L.

a year ago

We had a great experience with Burger Law for representing us after a serious car accident. Truly impressed by how professional and supportive the entire team is. And, many thanks to Genavieve and Laura – you are amazing!

Judy M.

a year ago

They did an amazing job on my case! Communication with them was great!!! Kept me informed and in the loop with everything that was going on!!! Will definitely be the 1st ones I’ll call if ever I’m in another accident!!! Thank you very much!!!

Chelsea C.

5 months ago

Let me tell you something about Burger Law.. they are so attentive and kind. Jennifer is my savior!! I love the whole team!!! They are truly a miracle team!! I appreciate their business and would recommend it to others.

David D.

2 months ago

Absolutely the best law firm in the St. Louis area. No matter the size of your case you are treated as if you are the only client on the roster. Will explain anything thoroughly and they work around your availability. Very impressed and appreciative of the service.

Lisa B.

11 months ago

Gary and Casey took great care of me for 2.5 years as my lawsuit was finally settled. I feel he helped me achieve justice for me and my 4 children after their father died from medical malpractice and neglect. Thanks to Gary, my kids now have a great start to their college and adult lives. Thank you Gary and Casey, for fighting for us so hard at our most trying and difficult time in our lives thus far. Love and God bless from my family to yours!

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