Participating in dangerous activities can be a thrilling adrenaline rush. Activities like riding roller coasters, going to trampoline parks, and skydiving are fun, but they are also dangerous. If a person is injured while participating in these types of activities, their ability to recover damages can be legally complicated.
Nevada law has a lot to say about whether someone can face liability when a person is injured while participating in a dangerous activity. Gaining a better understanding of the legal theory surrounding risk-taking is important so you are protected if you engage in activity that is deemed dangerous. Here’s what you need to know about personal injury risk taking .
Assumption of risk
“Taking the risk” is a legal concept that can be applied when a person is injured during a dangerous activity. It is the idea that a person knows what the risks are when choosing to do something dangerous.
When risk assumption is applied, it prevents the injured party from holding someone else responsible for their injuries, because they knew what the dangers were when they chose to participate in the activity.
Express assumption of risk
When a person signs a waiver before engaging in dangerous activity, it is called “expressly assuming the risk.” In that case, the person participating in the activity expressly acknowledges that they are aware of the potential danger. The individual will generally sign a liability waiver stating that they agree to participate in the activity despite its known risks. Even if you sign an express assumption of the risk agreement, you can still sue in some circumstances.
An example of an express assumption of risk is a waiver for a person to sign before using a gym. The exemption generally says that the user acknowledges that using gym equipment is a dangerous activity. When the person signs it, they agree that they are assuming the possibility that they could get hurt in the gym.
Even so, there are some situations where you can still file a claim even when you sign an express assumption of the risk agreement. In some cases, the person asking you to sign a waiver could expose you to a different risk than you expect. For example, if you sign a waiver at a trampoline park, the park owner could leave a trampoline with frayed nets and exposed springs. If you are injured, you may still be able to recover, because the risk you agreed to is not the risk the other person exposes you to.
Implicit assumption of risk
The “implicit assumption of risk” applies when a person knowingly engages in dangerous activity. Although no verbal or written agreement has been reached, a person knows there is a risk and decides to participate in the event anyway.
For example, most people know that playing softball can be a dangerous activity. Although they do not sign a waiver, in most cases, just picking up the bat and ball to play the game creates the person participating in the game that knows there is a possibility of injury.
Primary implicit risk assumption
When the “primary risk assumption” is applied, a person accepts the risk knowing that the others involved have no duty for their safety. An example of this is when a person attends a sporting event .
If you are presented with a foul ball, you cannot file a claim for your injuries, because you knew it was a possibility when you chose to attend the game. Usually, the primary assumption of risk ultimately stops the victim from recovering from their losses.
Implicit assumption of secondary risk
When the “secondary risk assumption” applies, the other party owes a duty of care to the person participating in the activity, but the participating person knows the risk and accepts it voluntarily. For example, a person who chooses to go bungee jumping knows that it is a dangerous activity.
Even so, the company that the person hires to go bungee jumping still owes a duty of care to the person who participates. When the secondary implied assumption of risk applies, the victim may still have a recovery claim when injured due to the negligence or willful act of another person.
Modified comparative negligence
In cases where the other party owes you a duty, comparative negligence may be applied to allow you a partial recovery even if you accept some risk. In that case, the jury looks at the whole case.
They compare the negligence of the other person to the risk you take. The jury decides what is fair and what you should be able to recover for your injuries.
It’s an affirmative defense
In Nevada negligence law , taking risk is what is called an affirmative defense. That means it is something the defense has to raise in response to the lawsuit against them. This type of argument is one that introduces evidence that will nullify liability, even if negligence is proven.
If they raise it as a defense, it is up to them to show the jury that you took the risk. Ultimately, the jury decides these questions of fact, even if you took the risk.
The assumption of risk may be null for public policy
In some cases, you can’t take risks. This consideration applies to emergency medical services and compulsory public education. Nor can you take the risk of an intentional act. That is, even if you sign a waiver, someone else cannot do things to hurt you on purpose.
For example, if you sign a waiver to jump at a trampoline park, the owner cannot place a sharp object under your trampoline to hurt you on purpose. If they do, you can still file a claim. You must also have the ability to consent. This could apply in a case where the injured person is a minor who cannot legally sign a waiver or appreciate the risks involved in the activity.
Help from a lawyer
Risk-taking is just one of the legal issues and questions that can arise in your personal injury case. A lawyer specializing in injuries to Las Vegas can help you evaluate your case to see if the assumption of risk applies.
Your attorney can help you explore whether risk-taking prevents you from presenting a successful recovery case. They can also help you identify other important issues in your case and provide an expert opinion on these matters. Schedule your free consultation with an attorney who can help you take the right steps to prepare your case for the best possible recovery.