The argument in tort law regarding the assumption of risk is based on consent. In arguing in tort law, the use of an assumption of risk is the application of an affirmative defense. Typically, the defendant uses it in a negligence suit to argue that the plaintiff was aware of the dangerousness of the situation but still assented voluntarily to go ahead and expose him or herself. As a result, the defendant can argue the plaintiff is a co-author of the resulting harm. The defendant is relieved of responsibility for the harm caused on these grounds. This is not a common but a possible approach used by the defendant in a specific type of car accident case.
Assumption Of Risk Versus Comparative Negligence
The assumption of risk is similar to another approach often used. This is comparative negligence. Both arguments utilized by the defense rely on equally culpable behavior. If both parties are at fault, they are both equally responsible for the problem. In the case of a car accident case, the defendant and the plaintiff would equally share the responsibility.
In the instance of assumption of risk, the result is different. While both parties are perceived as responsible, the fault of the accident does not produce the same outcome. There is no split or even sharing of costs. In this type of defense, the plaintiff bears the sole fault. The defendant is relieved of all responsibility.
Assumption Of Risk As A Defense
In order for a lawyer to adopt this type of approach, he or she must accumulate facts about the car accident case. These include
- Information about the incident – where it took place, what was involved, the conditions of the vehicles, any pertinent data relating to the scene and other characteristics
- Information about the plaintiff – Did he or she know the risk? Did he or she understand the risk?
- The mind-set of the person on the day of the accident – specifically did the plaintiff knowing the risks and the possible consequences go ahead and undertake the actions resulting in the crash.
Some attorneys consider the defense of assumption of risk as an ideal solution for the defendant. Yet, there are drawbacks. The defense and the defendant must argue convincingly and prove intentional behavior. It is up to the attorney to know if this form of argument would be successful in your specific car accident case.
