Assumption of Risk: What Is It?

If you’ve been injured in an accident, you might be considering a personal injury claim. However, something called the assumption of risk could affect the outcome of your case. This doctrine applies when someone voluntarily participates in an activity, knowing and accepting the risks. When this happens, it can limit or even eliminate another party’s liability for your injuries. Here’s everything you need to know.  

Understanding the Assumption of Risk Doctrine

The assumption of risk doctrine is a defense that’s often used in negligence cases. Negligence occurs when someone fails to use reasonable care in their actions or decisions, resulting in harm to another person. To build a successful negligence case, you need to prove four elements: 

• The defendant owed you a duty of care
• They breached that duty through their actions or inaction
• This breach directly caused your injury
• You suffered real damages as a result

Assumption of risk directly challenges the first element of negligence, or duty of care. When you knowingly participate in a risky activity, the other party may argue that they no longer owe you the same level of protection. For instance, if you go skiing and get injured on a properly marked difficult trail, the ski resort may claim you assumed the risk of skiing on challenging terrain. 

Types of Assumption of Risk

Generally, there are two types of assumption of risk, expressed and implied; however, some jurisdictions break it down even further into primary and secondary. Here’s a breakdown of each one.  

Expressed

Express assumption of risk occurs when there is clear, tangible evidence that you were aware of and accepted specific risks. This may be: 

• A signed document like a waiver, release form, or participation agreement
• A contract containing language that explicitly outlines potential risks
• A clearly stated verbal agreement acknowledging the risks involved

One of the most common examples is the liability waiver you sign before participating in activities like zip-lining, whitewater rafting, or joining a gym. Waivers like this often include language that states you understand the risks and agree not to hold the business responsible if you’re injured. 

Verbal agreements can also constitute an express assumption of risk; however, they’re generally harder to prove in court without witnesses or other supporting evidence.

Implied 

In situations of implied assumption of risk, there’s no written waiver or verbal agreement, but your actions suggest you understood and accepted the risks anyway. For example, if you decide to play in a recreational softball game, you implicitly assume certain risks of the sport, like being hit by a ball. You may not have signed anything acknowledging this risk, but it’s reasonably understood that this could happen during normal gameplay. 

The court considers whether a reasonable person in your position would have recognized and understood the danger. Your experience level, the nature of the activity, and how obvious the risk was are all things that come into consideration when determining if the implied assumption of risk applies to your case. 

Primary

The primary assumption of risk applies to situations where the defendant owes no legal duty of care to the plaintiff whatsoever. This concept recognizes that certain activities carry inherent risks that cannot be eliminated without fundamentally altering the nature of the activity itself. In these cases, the defendant cannot be found negligent because they had no duty to protect the plaintiff from those risks in the first place. 

Examples include: 

• Contact sports like football or hockey
• Adventure activities like rock climbing 
• Spectator risks at sporting events (i.e., being hit by a foul ball at a baseball game)

Secondary

The secondary assumption of risk applies in situations where the defendant had a duty of care to the plaintiff and breached that duty. However, the plaintiff knowingly proceeded to encounter the risk created by the defendant’s negligence anyway. 

For example: 

• You notice a Wet Floor sign in a store, but walk across the slippery surface anyway and fall
• You enter a construction area despite clearly posted warning signs and suffer an injury 

In these cases, comparative negligence is typically used to evaluate the situation. 

Does Florida Recognize Assumption of Risk? 

Yes. Florida recognizes assumption of risk as a valid defense in personal injury cases, but only in a limited way. 

Florida’s Modified Comparative Fault Law vs. Assumption of Risk

Florida doesn’t recognize implied assumption of risk due to Florida Statute 768.81, or the modified comparative fault law that takes into account the plaintiff’s responsibility in causing their own injuries. 

This provision gives the court the authority to determine what percentage of fault belongs to each party involved, and your percentage of fault reduces your compensation. For example, if you’re injured in a car accident and seek $100,000 in damages, but the court determines you were 30% at fault, your recovery would be limited to $70,000. If you’re found to be more than 50% responsible, you cannot recover any damages.   

In the 2017 court case, Petruzzella v. Church on the Rock, the Florida Supreme Court ruled that the doctrine of express assumption of risk should be limited to: 

• Express contracts not to sue (written waivers)
• Injuries resulting from contact sports 

This case also determined that conduct previously defined as implied secondary assumption of risk should instead be evaluated under the principles of comparative negligence. 

Additionally, some states use something called contributory negligence, which differs from assumption of risk in that if any portion of their own negligence caused a plaintiff’s damages, the plaintiff can’t recover any compensation.

Florida’s Requirements for Waivers Involving Children

While Florida does recognize express assumption of risk through waivers, there are specific laws in place regarding waivers that involve children. Per Florida Statute 744.301, parents and natural guardians can waive claims against commercial activity providers on behalf of their minor children, but only if these waivers meet certain standards. 

The statute requires these waivers to include a specific notice statement in uppercase type that must be “at least 5 points larger than, and clearly distinguishable from, the rest of the text.” The statement must acknowledge the assumption of risk by stating that the parent is “AGREEING THAT…THERE ARE CERTAIN DANGERS INHERENT IN THE ACTIVITY WHICH CANNOT BE AVOIDED OR ELIMINATED.” 

If these requirements aren’t met (e.g., if a waiver uses standard font size or omits the required language), the express assumption of risk may be invalid, allowing a claim to proceed despite the signed waiver. 

Get Expert Representation with Fine, Farkash & Parlapiano, P.A.

When defendants claim you assumed the risk of your injuries, they’re essentially trying to avoid responsibility for their negligence. Without proper legal representation, you might face unfair settlement offers or even have your claim dismissed entirely. 

Don’t let assumption of risk defenses prevent you from receiving the compensation you deserve for your injuries. Contact Fine, Farkash & Parlapiano, P.A. today for a free consultation about your personal injury case. Our experienced Gainesville attorneys will review your situation, explain your options, and fight for your right to fair compensation. 

Sources:

768.81 Comparative fault. | The Florida Legislature

Petruzzella v. Church on the Rock | District Court of Appeal of the State of Florida, Fifth District

contributory negligence | Cornell Law School

744.301 Natural guardians. – The Florida Legislature 

Jack Fine

Mr. Fine was born in New York, New York, and was raised in the northeast, where he studied sociology at Colby College in Waterville, Maine. He then graduated with honors from the University of Florida Levin College of Law in 1976. In law school, he was a member of Phi Kappa Phi Honor Society, was inducted into the Order of the Coif, and graduated in the top 10 percent of his class. Mr. Fine was admitted into the Florida Bar in 1976, the United States District Court for the Middle District of Florida in 1977, the United States District Court for the Northern District of Florida in 1991, and the United States Court of Appeals 11th Circuit in 1982.