Accidents are a part of life, but they can be devastating for the victim. And, unfortunately, a seemingly straightforward car accident case can be deceptively complex. Consider a pedestrian crossing the street and getting hit by a speeding car. The pedestrian is hurt, so they file a lawsuit against the driver. Seems pretty straightforward, right? But then the defendant produces video of the crash, and it turns out that the pedestrian’s blew off, causing them to step out of the crosswalk into a busy part of the intersection to get it. The defendant says that the pedestrian assumed the risk, and is therefore not entitled to any compensation at all. But is that really the case?
Well the answer is not so straightforward. Fortunately, the experienced attorneys at Fishwick & Associates PLC can break it down for you.
What is assumption of risk?
Assumption of risk is what is called an affirmative defense; rather than denying their negligence, a defendant who raises an affirmative defense claims that, regardless of their negligence, they cannot be held responsible. In the case of assumption of risk, the defendant is claiming that the person suing them—the plaintiff—assumed the risk via their own actions.
A plaintiff assumes the risk when they voluntarily do something that they fully understand to be dangerous. Because i the plaintiff has taken a risk, other people are no longer responsible for the injuries the plaintiff suffers as a result.
In the above example of the pedestrian stepping out of the crosswalk and into a busier part of the intersection, they likely knew that leaving the crosswalk and stepping into a busy intersection was dangerous, but did so anyway. The risk that they assumed was also directly related to the injuries that occurred. Thus, it only makes sense for the defendant to assert assumption of risk as a defense—even if the defendant was in fact speeding.
How is assumption of risk proven?
It’s on the defendant to prove that the plaintiff assumed the risk. The defendant must prove that the plaintiff fully knew and understood the nature and extent of the risk being taken, and then took that risk voluntarily. This must be established under what is known as a “subjective” test, meaning that the defendant has to prove that the plaintiff actually knew about the risk actually being taken. An “objective” standard—that the plaintiff didn’t act the way a reasonable person in the same situation would have acted—simply won’t cut it when it comes to proving assumption of risk.
Who decides if there was assumption of risk?
Assumption of risk is generally a question for the jury. They weigh the evidence presented by the defendant, and any counter-evidence presented by the plaintiff, and then make their decision. The jury will weigh the evidence based on the instructions given to them by the judge, which often derive from the Virginia Model Jury Instructions. However, in very rare circumstances, the evidence may be so incontrovertible that the judge will decide as a matter of law that a plaintiff assumed a risk—or, on the other hand, that there is no evidence at all that the plaintiff assumed a risk, such that the jury will not get to decide the issue.
If a plaintiff assumed the risk, can they still be awarded money?
Unfortunately, no. In Virginia, if the defendant proves assumption of risk against the plaintiff, the plaintiff is completely prevented from recovering anything for the alleged negligence at issue, even if the defendant was in fact negligent or the plaintiff’s assumption of risk was relatively slight.
How does a plaintiff fight against the assumption of risk defense?
A plaintiff can present evidence that they didn’t assume the risk. Remember, just like how a plaintiff has to prove the defendant’s negligence, the defendant has to prove that the plaintiff assumed the risk.
There are other ways, too, to get around assumption of risk. For example, if the defendant’s negligence rose to the level of willful and wanton conduct—sometimes referred to as recklessness—than assumption of risk will not bar the plaintiff from winning.
Similarly, if a plaintiff assumed the risk while rescuing another—or even the defendant—from danger, the courts will not hold that against them. In other words, because protecting others is important, assumption of risk will not bar the plaintiff from winning.
Likewise, if a plaintiff assumed a risk but then became unable to remove himself from danger, the defendant may be held liable under the last clear chance doctrine. This doctrine applies when the defendant had the last opportunity to avoid hurting the plaintiff, who was physically able to avoid the danger but unconscious of it. When this doctrine applies, assumption of risk will not save the defendant from liability.
Have Your or a Loved One Suffered an Injury?? Contact Fishwick & Associates to Discuss Your Legal Options
As the above discussion demonstrates, assumption of risk is complex—one of the many complexities of our legal system that makes the advice of an attorney invaluable. If you or a loved one have suffered an injury due to the negligence of another, an experienced attorney can help you work the claims process and advise you on the applicability and how to counter legal defenses like assumption of risk. So, do not hesitate to seek legal counsel! To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.
References
1 Virginia Model Jury Instructions – Civil Instruction No. 6.100 (2024).
Thurmond v. Prince William Prof’l Baseball Club, 547 S.E.2d 246, 249 (2003).
Hoar v. Great E. Resort Mgmt., 506 S.E.2d 777, 787 (1998).
Waters v. Safeway Stores, 435 S.E.2d 380, 381 (1993).
Greater Richmond Transit Co. v. Wilkerson, 406 S.E.2d 28, 32 (1991).
Atrip v. E.E. Berry Equip. Co., 397 S.E.2d 821, 823-824 (1990).
Amusement Slides Corp. v. Lehman, 232 S.E.2d 803, 805 (1977)
Arndt v. Russillo, 343 S.E.2d 84, 86 (1986).
Van Collom v. Johnson, 319 S.E.2d 745, 747 (1984).
Nelson v. Great E. Resort Mgmt., 574 S.E.2d 277, 280 (2003).
Kings Markets, Inv. V. Yeatts, 307 S.EE.2d 249, 254 (1983).