Assumption of risk is a Virginia defense that can bar an injury claim when the injured person fully understood a known danger, voluntarily chose to face it, and was injured as a result of that danger. It focuses on the injured person’s knowledge and choice, while contributory negligence focuses on whether the person failed to use reasonable care for their own safety.
At Fishwick & Associates PLC, attorney John P. Fishwick Jr. represents injured people throughout Virginia in claims where defenses such as assumption of risk can affect recovery. As an experienced Roanoke personal injury lawyer, he can review the defense, assess the available evidence, and explain how it may affect the claim.
This guide explains how assumption of risk works in Virginia, what a defendant must prove, how the defense differs from contributory negligence, and when specific statutory rules apply. Call (540) 345-5890 to discuss your Virginia injury claim with Fishwick & Associates PLC.
How Does Virginia Law Define Assumption of Risk?
Assumption of risk is an affirmative defense. A defendant who raises it argues that the plaintiff knowingly and voluntarily accepted the specific danger that caused the injury. If proven, the defense bars recovery for injuries resulting from that danger, even if the defendant was negligent.
The defense is not established simply because an activity involved danger. Assumption of risk can be express or implied, but a signed waiver does not automatically bar a Virginia personal injury negligence claim. Virginia law does not enforce a preinjury release that attempts to excuse future negligence causing personal injury. Implied assumption of risk can arise from a person’s conduct when the evidence shows that the person understood and appreciated the specific danger and voluntarily exposed themselves to it.
What Are Common Examples of Assumed Risk?
In Thurmond v. Prince William Professional Baseball Club, an adult spectator familiar with baseball remained in an unscreened seating area and was struck by a batted ball. The evidence showed that she understood the normal risk of a batted ball and voluntarily exposed herself to it.
Thurmond shows how a plaintiff’s knowledge of a specific danger and decision to proceed can support the defense in a recreational setting. Similar assumption of risk arguments can arise in other activities and injury claims.
Other situations where a defendant may raise assumption of risk include:
- Amusement or recreational activities where the injured person knew and appreciated the specific danger before voluntarily proceeding
- Walking into a known hazard the injured person had already seen, understood, and voluntarily chosen to encounter
- Riding with a driver when the passenger knew the driver’s alcohol use had impaired or was likely to impair the driver’s ability to drive and fully appreciated the danger
- Continuing to ride with a driver whose reckless operation created a danger the passenger knew and voluntarily accepted
These situations can support an assumption of risk argument, but none establishes the defense by itself. The defendant still has to prove the required elements based on the facts of the particular case.
How Must a Defendant Prove This Defense?
The defendant bears the burden of proving each required element by the greater weight of the evidence. Virginia uses a subjective test for the plaintiff’s knowledge and appreciation of the danger, focusing on what this particular plaintiff knew rather than what a reasonable person would have known.
The proof can come from either party’s evidence. Testimony, prior experience with the activity, warnings, statements, and other evidence can help show what the injured person knew and appreciated about the specific danger. Fishwick & Associates PLC can review that evidence and assess whether the defendant can meet its burden on each required element.
Personal Injury Attorney in Roanoke – Fishwick & Associates PLC
John P. Fishwick Jr., Esq.
John P. Fishwick Jr. is a Roanoke trial lawyer and founder of Fishwick & Associates PLC.. He served as the United States Attorney for the Western District of Virginia after being appointed by President Barack Obama and unanimously confirmed by the U.S. Senate. John earned his B.A. from Harvard University in 1979 and his J.D. cum laude from the Washington and Lee University School of Law in 1983, where he served as Note and Comment Editor of the Washington and Lee Law Review.
After law school, John clerked for the Honorable James C. Turk of the U.S. District Court for the Western District of Virginia. He has served on the Virginia Trial Lawyers Association Board of Governors and the Virginia State Bar Council. John has been selected to Virginia Super Lawyers in multiple years and has received Martindale-Hubbell Client Champion recognition. He is admitted to practice before the Supreme Court of Virginia, the U.S. Court of Appeals for the Fourth Circuit, the federal district courts for the Western and Eastern Districts of Virginia, and the U.S. Supreme Court.
Who Decides If You Assumed the Risk?
Assumption of risk is ordinarily a question for the jury, which decides whether the evidence supports the defense under the legal standards provided by the court. Virginia Model Jury Instructions include Instruction 6.100, which defines assumption of risk, and Instruction 6.110, which addresses the defendant’s burden of proof.
The issue can be decided by the court when the evidence is so clear that reasonable minds could not differ. Winter sports cases have an additional statutory rule. Under Va. Code § 8.01-227.19, whether a circumstance qualifies as an inherent risk of winter sports is a question of law, while whether the participant assumed that particular risk is a question of fact.
How Is Assumption of Risk Different from Contributory Negligence in Virginia?
Assumption of risk and contributory negligence can both bar recovery in Virginia, but they apply different standards. Contributory negligence asks whether the injured person failed to use ordinary care for their own safety, measured against what a reasonable person would have done. Assumption of risk focuses on whether this particular plaintiff knew and appreciated the specific danger and voluntarily accepted it.
Virginia’s contributory negligence rule does not compare the parties’ percentages of fault.
| Factor | Assumption of Risk | Contributory Negligence |
|---|---|---|
| Core question | Did the plaintiff knowingly and voluntarily accept a specific danger? | Did the plaintiff fail to use ordinary care for their own safety? |
| Standard | Subjective: what this plaintiff personally knew and appreciated | Objective: what a reasonable person would have done |
| Burden of proof | Defendant | Defendant |
| Required connection to the injury | The injury resulted from the danger assumed | The plaintiff’s negligence was a proximate cause |
| Effect if proved | Bars recovery for injuries resulting from the assumed danger | Bars recovery |
Can You Recover If You Assumed the Risk in Virginia?
If the defendant proves assumption of risk, the plaintiff cannot recover for injuries resulting from the danger assumed. The defense bars recovery for those injuries rather than reducing damages by a percentage.
Evidence can be especially important when the dispute turns on what the injured person knew and accepted before the injury. Attorney John P. Fishwick Jr. can help preserve relevant evidence and evaluate how those facts affect the assumption of risk defense and other issues in the injury claim.
How Can You Overcome an Assumption of Risk Defense?
A plaintiff can challenge the defense by showing that one or more required elements are missing. Evidence that the injured person did not know about the specific danger, did not fully appreciate its nature and extent, did not voluntarily expose themselves to it, or was injured by a different danger can undercut assumption of risk.
Willful and wanton conduct can affect the availability of the assumption of risk defense in some circumstances. It requires more than ordinary negligence and involves conscious disregard of another person’s rights or reckless indifference to the consequences when the defendant is aware that the conduct would probably cause injury.
The rescue doctrine can also defeat assumption of risk in a qualifying case. The person being rescued must have been in imminent and serious danger, and the plaintiff must have been injured after the rescue attempt began. The plaintiff also must not have created the danger or rashly and recklessly disregarded all considerations for their own safety during the rescue.
Fishwick & Associates PLC can review the defendant’s evidence and assess which challenges to the assumption of risk defense are supported by the facts and Virginia law.
Does Virginia Law Address Assumption of Risk by Statute?
Most of the doctrine comes from common law, but Virginia has codified it in specific settings. Under the Winter Sports Safety Act, Va. Code § 8.01-227.19, a winter sports participant is presumed to have known the inherent risks of the sport, to have fully appreciated the nature and extent of those risks, and to have voluntarily exposed himself to them, even if the operator never spelled out a particular risk. A similar presumption applies to passengers who use a passenger tramway with the operator’s permission, but it is limited to winter sports risks applicable to tramway use.
That presumption can be rebutted. A participant or passenger can present evidence that they did not know the particular inherent risk that proximately caused the injury, death, or property damage, did not fully appreciate its nature and extent, or did not voluntarily expose themselves to it. An operator’s negligence is not an inherent risk of winter sports, so a participant or passenger is not presumed to have accepted injuries proximately caused by that negligence.
The Code provides a different rule for certain railroad employees. In an action covered by Va. Code § 8.01-57 and § 8.01-59, an employee’s knowledge that the carrier’s machinery, ways, appliances, or structures were defective or unsafe is not by itself a bar to recovery. The employee also is not treated as having assumed the risk of employment when the carrier’s violation of an employee safety statute contributed to the injury or death.
Key Takeaway: Most Virginia assumption of risk rules come from court decisions, but statutes control in certain settings. Winter sports participants face a rebuttable statutory presumption, while certain railroad employees receive separate protections.
Legal Help for Virginia Injury Claims Involving Assumption of Risk
An insurance company or defense lawyer can raise an assumption of risk defense to challenge an injured person’s right to recover, but the defense must still be supported by the facts and evidence. A careful review of how the injury occurred, the information available before it happened, and the parties’ conduct can help determine how the defense affects the claim.
At Fishwick & Associates PLC, our Roanoke personal injury attorneys can evaluate how assumption of risk and contributory negligence affect your claim and advise you on the next steps. Attorney John P. Fishwick Jr. can respond to those defenses and pursue the claim based on the facts and Virginia law.
Call Fishwick & Associates PLC at (540) 345-5890 or complete our online contact form to schedule a free consultation. Our office is located at 30 Franklin Rd SW, Ste 700, Roanoke, VA 24011, and we serve injured clients throughout the Roanoke Valley and Virginia.
Frequently Asked Questions
Who has the burden of proving assumption of risk in Virginia?
The defendant. To succeed, the defense must prove by the greater weight of the evidence that the injured person appreciated the specific danger, voluntarily faced it, and was injured because of that danger. If a required element is not proved, the defense fails.
Is assumption of risk the same as signing a waiver?
A waiver and assumption of risk are separate legal issues. Virginia does not allow a preinjury release to excuse future negligence that causes personal injury. The assumption of risk defense instead turns on the injured person’s knowledge and voluntary acceptance of the danger.
Does assumption of risk apply to car accident cases?
It can. One Virginia example involves a passenger who voluntarily rides with a driver despite knowing that the driver’s alcohol use has impaired or is likely to impair the driver’s ability to drive. The defense still requires proof that the passenger knew and fully appreciated that particular danger and voluntarily accepted it. If assumption of risk is being raised in your Virginia car accident claim, call Fishwick & Associates PLC at (540) 345-5890 to discuss the circumstances of the crash.
What happens if I get hurt while trying to help someone?
It can depend on the rescue doctrine. The person being rescued must have faced imminent and serious danger, the injury must have occurred after the rescue began, and the rescuer must not have created the danger or acted with rash or reckless disregard for their own safety.
Does assumption of risk apply to skiing accidents in Virginia?
Winter sports have their own rules. Under Va. Code § 8.01-227.19, participants are presumed to have known and accepted the inherent risks of the sport, while tramway passengers face a similar presumption for risks applicable to tramway use. The presumption can be rebutted, and an operator’s own negligence is not treated as an inherent risk.
Can I still recover if the driver or property owner acted recklessly?
Potentially, but describing conduct as reckless is not enough by itself. The facts must support Virginia’s higher standard for willful and wanton conduct, which requires more than ordinary negligence. That level of conduct can affect the availability of assumption of risk in some circumstances. Fishwick & Associates PLC can review the conduct involved and assess how it may affect the assumption of risk defense. Call (540) 345-5890 for a free consultation.
Who decides whether I assumed the risk, the judge or the jury?
The jury ordinarily decides the issue. A court can decide it without sending the question to the jury when the evidence is so clear that reasonable minds could not differ.
