Hurt in a bad accident in Chicago? You have the right to hold the at-fault party legally responsible for the full value of your damages, including medical bills, loss of earnings, and pain and suffering. With that being said, getting a full and fair personal injury settlement can often prove to be challenging in practice. Defendants and their insurers want to resolve cases for less. They may even try to raise a defense called assumption of risk to deny their liability altogether. Here, our Chicago personal injury attorney provides a comprehensive guide to the most important things to know about assumption of risk and personal injury law in Illinois.
Assumption of Risk: Defined
Assumption of risk is a potential defense against a personal injury claim. In certain cases, victims should be prepared to face this defense strategy. The Legal Information Institute defines assumption of risk as “a common law doctrine that refers to a plaintiff’s inability to recover for the tortious actions of a negligent party in scenarios where the plaintiff voluntarily accepted the risk of those actions.” Described another way, assumption of risk is a defense in a personal injury case where a defendant argues that the plaintiff voluntarily engages in an activity that is known to carry inherent risks. As such, the defendant argues that the claimant/plaintiff “assumed” those risks.
Understanding Assumption of Risk Through Examples
To better understand how the doctrine of assumption of risk can impact a personal injury claim in Chicago, it is useful to review some hypothetical examples. Here are three examples of cases in which an assumption of risk defense may be raised:
- Rock Climbing Injury (Assumption of Risk): Imagine a woman who signs up for an introductory rock climbing course. She is fully informed of the potential dangers of rock climbing, including falls. Prior to participating, she signed a detailed waiver that clearly outlined these risks and the possibility of injuries such as broken bones or lacerations. During her climb, the woman unfortunately loses her grip and falls. She sustained a fractured ankle. Assuming all equipment functioned as aspects, a personal injury claim against the rock climbing gym may be defended on the grounds of assumption of risk.
- Marathon Injury (Assumption of Risk): A Chicago man agrees to participate in the City Marathon. He is an experienced, trained runner. Before the race, all participants are informed about the physically demanding nature of the course and the inherent possibility of injuries. The man sustained a serious muscle injury while two-thirds of the way through the race. If he sues the race organizer in a personal injury claim, an assumption of risk defense would likely be raised—arguing that he was fully aware of the risks.
- Basketball Game (No Assumption of Risk): Sports injuries happen. They are part of a game like basketball. With that being said, not all risks are automatically assumed. Imagine that during a local recreational basketball game, a man is unexpectedly assaulted by another player during an argument over a foul. The victim suffered a serious traumatic brain injury (TBI). The assumption of risk doctrine would likely not apply to this case—even if a waiver was signed. While playing basketball absolutely carries inherent injury risk, it is not common to be physically assaulted by another player. That some risks are assumed does not mean that a person is assuming every possible risk.
Assumption of risk claims are highly fact-specific and case-specific. Whether or not a specific risk of “assumed” by the participant of an activity depends entirely on the situation. An experienced Chicago personal injury lawyer can investigate your case and help you better understand your rights and your options.
Signed a Waiver? It is Relevant, But Not the Only Factor
A lot of potentially risky activities require participants to sign a waiver before getting involved. A waiver matters—but it is never, by itself, dispositive. While signing a waiver can be a significant factor in a personal injury claim in Illinois, it does not automatically negate the possibility of legal recovery. Waivers are designed to inform participants of inherent risks associated with an activity and typically serve as a defense for service providers. However, the enforceability of a waiver depends on several factors, including:
- How clearly the risks were disclosed;
- The comprehensibility of the waiver language; and
- The scope of activities covered by the waiver.
In Illinois, courts can consider the totality of the circumstances when evaluating a personal injury claim. In effect, this means that a court in Illinois can consider a wide range of case-driven issues, including whether the waiver was signed under duress and if the nature of the incident exceeded what could reasonably be considered inherent to the activity. Further, when an accident happens because of “gross negligence” in Illinois, a personal injury waiver can always be set aside.
How Our Chicago Personal Injury Lawyer Can Help
Personal injury law is complicated. It is normal to have a ton of questions about your case, especially so if the defendant or its insurer is trying to raise an assumption of risk defense. At Kennedy Watkins LLC, our team of Chicago attorneys put the rights and interests of victims first. With a strong record of successful verdicts and settlements, we devote personalized resources to each and every case. You may be entitled to recover compensation for your medical bills, lost wages, pain and suffering, long-term disability, and other damages.
Contact Our Chicago, IL Personal Injury Attorney for a Free Case Review
At Kennedy Watkins LLC, our Chicago personal injury lawyers fight aggressively to protect the rights and interests of victims and families. If you have any specific questions or concerns about the assumption of risk defense, we are here as a resource. Get in touch with us today for your free, no obligation initial appointment. From our Chicago law office, we fight for the rights and interests of injured victims in Cook County and throughout all of Northern Illinois.