Legal Defense Factors into Some Personal Injury Cases
Just because an injured person claims negligence on the part of another party, this does not necessarily mean that the claim will be successful. There are a number of strategies that a defendant can use to sidestep liability in a personal injury claim, and one of the most frequently used is a defense based on assumption of risk.
Colorado uses a modified comparative fault rule when determining damages in a personal injury case, and assumption of risk is part of this law. Under this rule, an injured person is not eligible to recover damages if he or she is 50 percent or more at fault for the injuries. If an injured person is less than 50 percent responsible for injuries, the recovery will be reduced according to his or her relative degree of fault.
What is assumption of risk?
A defendant may argue that an injured person is not entitled to compensation because he or she knowingly entered a potentially dangerous situation. Assumption of risk is a legal defense to negligence that is intended to shift the responsibility for injury from the property owner to someone who voluntarily or unreasonably accepts exposure to injury or damage with knowledge or appreciation of the risk involved.
When used as a defense in a personal injury case, the assumption-of-risk doctrine militates against the duty of care generally required under Colorado negligence laws, allowing the defendant to avoid liability.
In some states, a person who is found to have assumed the risk of injury may be completely ineligible for recovery. In Colorado, assumption of the risk is part of how much fault to assign to each party to a lawsuit.
However, if someone violates the law or unreasonably elevates the risk to the injured person, he or she will not be able to use assumption of the risk to escape responsibility for the other party’s injury.
Most people would not expressly assume the risk of injury without being required to sign an agreement known as a liability waiver, in which the signer relinquishes a negligence claim for injuries sustained through participation in a risky or dangerous activity.
Colorado law historically disapproves of liability waivers, but a court will consider four factors to determine whether this type of agreement is enforceable:
- Whether a public duty exists
- The nature of the service being performed
- Whether the contract was entered into fairly
- Whether the intent of the parties is expressed in clear and unambiguous terms.
If the waiver is found to be enforceable, it will be treated in a way comparable to the assumption of the risk. It may completely bar recovery unless the responsible party is engaged in gross negligence or willful and wanton behavior. With an experienced Colorado personal injury attorney on your side, you can successfully challenge the enforceability of a liability waiver so that you are able to obtain greater compensation for your damages.