If you are pursuing a personal injury claim or lawsuit, don't be surprised if the defendant claims that you "knew what you were getting into" when you undertook the activity that got you injured. This is known as the assumption of risk defense, but there are a few weapons you can use to overcome it. For example, you may succeed if you can prove that.
You Did Not Know About the Risk
The assumption of risk defense only applies if you know about the risks you are assuming, which means the risks must be easily foreseeable or communicated by the defendant. If you didn't know about the risks, then you can argue that you wouldn't have entered the dangerous situation if you had known about its dangers, and the assumption of risk defense will collapse.
Consider a case where you are exposed to toxic mold while touring a building and you didn't know that the building had a risk of mold. In this case, the tour organizers or building management cannot use the assumption of risk defense unless they can prove that you knew about the risk of mold.
You Did Not Voluntarily Put Yourself in the Dangerous Situation
An assumption of risk defense only applies to actions voluntarily taken; that is why you are said to be assuming the risk. Therefore, if your friends trick you into a dangerous prank and you get injured, they may not be able to escape liability using the assumption of risk defense. The exception is if your friends can prove that you were somehow in the joke and knew about it all along.
You Got Injured As A Result Of the Defendant's Intentional Injuries
Intentional actions are expressly excluded from the assumption risk defense. This makes sense because if they weren't, negligent parties (or even criminals) would take advantage of the loophole and escape liabilities for their actions. Therefore, if your basketball coach punches you in the nose for making it easy for the opponents to score, they cannot use the assumption of risk defense by claiming that you knew basketball had its risks.
The Waiver Violated a Public Policy
Lastly, you may also overcome the defense by proving that the waiver or release form the defendant is relying on is a clear violation of public law. This is because public laws take precedence over any waivers that private parties my craft. For example, a restaurant cannot use the assumption of risk to escape liability for serving contaminated food because public policy requires restaurants to serve safe foods at all times.
For more information, contact a company like Kiernan Personal Injury Attorneys PA.