Assumption of Risk
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Understanding How Assumption of Risk May Impact Your Case
When you have suffered serious injuries due to a maritime or offshore accident, the last thing on your mind may be getting into a major legal battle with your employee or the party at fault. Unfortunately, even in cases where obvious negligence took place, the liable party will often try to fight this liability to avoid having to compensate you for injuries and damages suffered. One of the main legal doctrines used to support defendants in these cases is the “assumption of risk” defense.
What exactly does assumption of risk mean and how does it impact your case? It is a defense that is employed by allegedly negligent parties to demonstrate that the plaintiff (injured party) not only knowingly, but voluntarily assumed a risk of harm. This defense works to detach fault from the negligent party and show that the injured party should have known they were engaging in risky activity that could lead to injuries. That would mean a plaintiff could no longer obtain damages for the injuries they suffered due to the defendant’s actions—regardless of whether they were proven to be negligent.
Proving Assumption of Risk Defenses
Most maritime injury jobs expose workers to a higher risk for injury than your average office job, whether it be working on the high seas or in a busy shipyard. However, that doesn’t mean all injury claims are invalid. In fact, most offshore injury victims have strong cases that overrule the assumption of risk defense.
These factors must be proven for a defense to hold up:
- The injured person was aware of the risk of employer negligence involved in their work; and
- The injured person voluntarily accepted this risk.
A congressional amendment to the Federal Employers Liability Act (FELA) in 1939 worked to abolish any assumption of risk defenses for cases brought under the Act. The FELA decision has also been very impactful on negligence actions brought by seaman against employers under the Jones Act. It is important to note that assumption of risk cannot be used as a defense to your claim for admiralty. Comparative negligence, however, may be used by a defendant to try to nullify admiralty claims.
Express vs. Implied Assumption of Risk
Under this type of defense, there are two different types of assumption of risk that a defendant may try to use: express or implied. In order to prove assumption of risk, a defendant must show that the injured party accepted the risk involved. If that acceptance was done through an agreement between the two parties, it would be considered express assumption of risk. This often applies when a written agreement is used to have the plaintiff “assume all risks” associated with their work.
On the other hand, implied assumption of risk refers to cases where there is no written agreement, but some type of oral agreement or agreement through the conduct of the injured party exists. If a plaintiff implies their knowledge or awareness of the assumption of risk through actions or words, this type of defense may be available for a defendant.
Fighting this Type of Defense
Remember, unforeseeable risks and dangers cannot be included under an assumption of risk defense. Even if your job has some inherent risks, these risks do not automatically disqualify you from recovering compensation for unforeseeable injuries caused by your employer’s negligent or reckless behavior. Further, you have a right to recover basic compensation for lost wages, room and board, and medical expenses from your employer, regardless of whether or not negligence was involved.
If you believe your employer may try to use a defense of assumption of risk to invalidate your offshore injury claim, reach out to Arnold & Itkin today. Our award-winning maritime lawyers are here to help.