The Assumption Of Risk Doctrine Might Affect Your Personal Injury Case in Palm Beach County

by Oct 27, 2022Personal Injury

The Assumption Of Risk Doctrine Might Affect Your Personal Injury Case in Palm Beach County

by Oct 27, 2022Personal Injury

The Assumption Of Risk Doctrine Might Affect Your Personal Injury Case in Palm Beach County
The Assumption Of Risk Doctrine Might Affect Your Personal Injury Case in Palm Beach County

How the Assumption Of Risk Doctrine Might Affect Your Personal Injury Case

Sustaining an injury in an accident is a stressful experience, but the legal repercussions that might follow an accident can be just as devastating for the victim. For example, suppose an individual sustains an injury because of the carelessness or conduct of another person. In that case, most legal systems stipulate that the injured party is entitled to financial compensation for various losses, including medical bills and time missed from work. Regrettably, this is a process that is rarely simple, and the participation of legal professionals is always required because of this.

The plaintiff in a personal injury lawsuit has the burden of proving that the defendant was negligent in the event that led to the plaintiff’s injury. In contrast, the defendant will counter by asserting that the plaintiff assumed the risk that resulted in the plaintiff’s injury.

There are various ways in which the parties in a personal injury lawsuit will try to win the case. For example, suppose your personal injury case is in Palm Beach County, Florida. In that case, you want to ensure that your personal injury attorney in Palm Beach County is local as well and familiar with Florida law. Let’s take a closer look at the concept of “assumption of risk” and how it could influence the outcome of a claim for personal injury.

The Definition of “Assumption of Risk”

The phrase “assumption of risk” originates from a common law doctrine that states that a plaintiff who did not recover from the actions of the negligent party, usually the defendant, in the scenario in which the injury occurred, may not automatically place blame on the defendant if the plaintiff knowingly assumed unreasonable risk.

To put this another way, if the plaintiff in the personal injury claim knowingly and deliberately assumed risk while being fully aware of the situation, the defendant should not be held liable for the injuries resulting from the accident. Formerly, defendants might have utilized this as an affirmative defense in many cases. However, in some jurisdictions, it is now covered under contributory and comparative negligence.

Implied assumption of risk is a term that encompasses any potential harm that can come with participating in an activity that has the potential to be risky, such as sustaining physical injuries while mountain climbing or participating in sports that involve physical contact. Under the express acceptance of risk doctrine, a person who gets hurt often can’t file a lawsuit against the defendant if they signed a waiver saying they knew the situation was dangerous.

Additionally, there is the problem of primary and secondary risk assumptions to consider. According to the primary assumption of risk provision, a defendant does not owe a duty of care to the plaintiff. As a result, the courts exonerate the defendant from any accusations of negligence. Once more, involvement in contact sporting activities serves as an excellent example of this point. On the other hand, the idea of secondary assumption of risk refers to a situation in which the defendant owed a duty of care to the plaintiff. Still, the defendant broke that duty even though mitigating factors could have prevented the plaintiff’s injuries.

The assumption of risk refers to the idea that knowingly taking part in dangerous activities with an inherent risk of harm rarely results in a guarantee of the plaintiff winning a personal injury case. This is because the courts assume the plaintiff gets hurt because of their carelessness while participating in the dangerous activity and that this is not the defendant’s fault.


In many states, a defendant entering an assumption of risk defense is the end of the plaintiff’s case, depending upon the circumstances. However, in Florida, this is not an automatic defense. Florida Law F.S. 768.81 concerning the assumption of risk was codified in 2019 due to the concept of comparative fault. Comparative fault allows a plaintiff to pursue a lawsuit even if they are themselves partially to blame for the incident.

However, the courts usually reduce the amount of damages in such a case. This statute was codified in the aftermath of the ruling in Leon v. Pena, in which the Fourth Florida District Court of Appeal stated that a plaintiff who suffered the injury while tripping over a crack in the sidewalk at an apartment complex could sue the development despite knowing about the crack and making no effort to avoid it. As the owners knew about the damaged sidewalk and ignored requests to fix it or post warning signs, they, too, were at fault for the situation.

The defendants stated that, in the ruling of Krol v. City of Orlando by the Florida 5th DCA, a property owner could operate under the assumption that someone can use common sense to avoid a hazardous situation on the premises, which absolves them of responsibility for the accident. However, in Leon vs. Pena, the ruling stated that this does not extend to absolving the property owner of liability if the property owners fail in their duty to warn by posting warning signs and ignoring requests to fix the sidewalk.

In Practice

In cases where the plaintiff was aware of potential risks and voluntarily, either in actions or words, accepted those risks, their legal representation typically encourages the defendants to make use of the assumption of risk defense. This can include circumstances of premises liability in which the risk of entering the property should be clear. For example, construction zones or premises in which extreme activities take place and require the use of a waiver to attend are examples of these types of locations. This may also include facilities for indoor climbing sports, indoor mountain biking, and other activities of the like kind.


If the plaintiff deliberately participated in a risky action, it may be challenging to demonstrate exceptions to the assumption of risk doctrine in their case. Having said that, the doctrine cannot be applied in all circumstances for several reasons. First, the plaintiff in these circumstances must have suffered an injury that was foreseeable and preventable, incurred because of the negligence of another, notwithstanding the fact that they assumed the risk when they took part in the activity.

For the sake of illustration, let us assume a plaintiff was skateboarding at a facility that catered to hardcore skateboarding fans. Because of this, the plaintiff signed a waiver and could participate in the activities without injuries. However, while he is at the staging area, he trips and falls on a poorly maintained staircase. In this case, the facility is indeed at fault and not the victim, at least in Florida. In another state, this scenario can result in a completely different outcome. If your personal injury case is Palm Beach County local, consult with seasoned experts in Palm Beach County jurisdiction regarding the assumption of risk. What is a clear assumption of risk in one location might not be the case in certain areas of Florida?

Your Case

Every case involving a personal injury is distinct and is subject to the facts and variables that are specific to that case, which can influence the final result. For example, for a plaintiff who was participating in a risky activity and sustained an injury in the course of that activity, the assumption of risk doctrine may cause the courts to throw out the case. On the other hand, suppose the lawyer for the defendant can show that the plaintiff did something risky even though they were warned not to or that the plaintiff was in a situation where a reasonable person would have known that the risk of getting hurt was high. In that case, the defendant could be cleared of blame and negligence.

However, the assumption of risk concept in the state of Florida does not apply in a wide variety of situations because of the state’s unique legal framework, as the example cases above show. Consult with seasoned legal professionals to ascertain whether this will influence your case.

If your personal injury case is in Palm Beach County, seek the advice of experts in Florida personal injury law. It is best to ensure that your personal injury attorney is Palm Beach County local if your case originated in the area. Experts in Florida’s personal injury law can tell you if the assumption of risk doctrine applies to your personal case.

The Bodden and Bennett can review your case and help you understand your rights and the legal course of action that might be available. Contact us online or call (561) 806-5229 today to schedule a free case evaluation.

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