When Can a Property Owner Use the ‘Assumption of Risk’ Defense in Premises Liability Cases?
Property owners in Florida have a duty to keep their premises in a safe condition free of hazards. Unfortunately, not all property owners uphold their expectations regarding maintenance obligations, which can result in slip and fall accidents.
However, many property owners use the “assumption of risk” defense to argue that the injured person was aware or should have been aware of the danger that led to the accident.
If the property owner can successfully prove the “assumption of risk,” the victim’s compensation may be diminished in proportion to their degree of fault. In some cases, the injured person may be barred from recovering any damages altogether.
How does the assumption of risk defense work?
Under the assumption of risk doctrine, a person may not be able to seek compensation for their injuries if they were injured when voluntarily exposing themselves to a known risk of injury.
So, if the property owner can prove that the victim knew about the risk but engaged in the activity that led to their injury, they may not be entitled to any damages. Depending on the circumstances, the injured person may still be able to seek compensation for their damages even if they were aware of the risks.
That’s why it is advised to consult with a Miami premises liability attorney to determine whether the assumption of risk defense can be used against you in your case.
When the assumption of risk defense can be used
While property owners routinely use the assumption of risk defense in an attempt to avoid liability, the defense can succeed under very limited circumstances.
The assumption of risk doctrine applies to premises liability cases involving any of the following:
- Participating in contact sports (however, under certain circumstances, persons who sustain injuries while playing contact sports can still sue for their injuries and damages)
- Riding a roller coaster or other amusement park attractions unless the defendant’s conduct is considered “grossly negligent”
- Getting injured on certain types of premises, such as a construction site, where signs “Enter at Your Own Risk” are clearly posted
- Participating in extreme sports such as sky diving, skiing, and others
In most cases, the applicability of the assumption of risk defense depends on whether the danger was foreseeable. Also, the defense may not be used in premises liability cases where the property owner is grossly negligent.
For example, if the property owner knew that equipment used for skiing was defective but did not fix it and let people use it, he might be held liable for the resulting injuries.
Pure comparative negligence and the assumption of risk defense
When considering how the assumption of risk defense may affect your ability to recover damages, you need to understand how Florida’s pure comparative negligence doctrine works.
According to Section 768.81, Florida Statutes, injured persons can seek compensation for their injuries and damages even if they were partially or mostly at fault. Under the pure comparative negligence rule, the victim’s damages are reduced in proportion to their degree of fault.
For example, if an injured person is deemed 40% at fault because they assumed the risk of injury, but the property owner is 60% to blame for the accident, the plaintiff may be able to recover 60% of the damages.