Most people enjoy participating in dangerous activities due to the excitement and adrenaline rush associated with them. However, activities like going on trampoline rides, riding roller coasters, and sky diving are inherently dangerous. If you sustain injuries when participating in these risky activities, your ability to seek compensation becomes more complicated.
Assumption of risk under Nevada law is a legal defense that shifts liability to the victim who engages in a potentially dangerous activity. You can assume the risk of an injury if you know the activity or conduct you engage in is risky. It must also be evident that you appreciate the danger that could result from the risk. You must also have accepted the risk voluntarily through a verbal or written agreement or the implications of your words or conduct.
Understanding Implied Assumption Of Risk
Nevada law has much to say regarding whether a service provider or other party can face liability if someone suffers injuries when engaging in a dangerous activity. Before engaging in a potentially risky activity, it is crucial to understand the legal theory of the assumption of risk. You must determine whether you will be protected if you participate in an activity and sustain injuries.
An implicit assumption of risk arises when you engage in an activity or conduct that is inherently risky. For example, you risk suffering a physical injury if you go rock climbing. Even if you do not enter into a verbal or written agreement, you know there is a risk when engaging in the said activity.
Most people understand that playing softball is a risky and potentially hazardous activity. Even if you do not sign a waiver, just picking up the ball and bat and joining the sport qualifies as an assumption of risk. It means you know the chance of injuries when playing the sport.
The defendant can use the assumption of risk legal doctrine in a personal injury case. An insurance company or any other entity being sued for liability can use the assumption of risk doctrine to reduce their liability and the compensation owed. If you suffer injuries and suspect the assumption of risk could apply, you will need reliable legal guidance. An attorney will guide you through the claim process and make a strong argument on your behalf.
There are two categories of implied assumption of risk in Nevada.
Primary Implied Assumption Of Risk
The primary implied assumption of risk arises when you voluntarily agree to take a known risk with the knowledge that other people have no responsibility for your injuries. The primary implied assumption of risks could be applicable when you engage in risky sports. For example, the primary implied risk assumption could apply when you play a baseball game. In this case, the stadium owners are responsible for reducing the risks in the most dangerous sections of the stadium. They can do this by putting the net behind home plate.
However, despite the precautions, it is still possible to be hit by a stray ball. This is a common and unavoidable component of baseball games. You will not be able to sue the operator of the park for your injuries if you sit in the right-field stands at a baseball game and get hit by a foul ball.
The primary implied risk assumption is a valid defense against a lawsuit. The defense is admissible in court because the defendant owes you no duty of care in a primary implied assumption of risk case. As a result, you are not eligible to recover damages if the defendant violates a non-existing standard of care.
Secondary Implied Assumption Of Risk
A secondary implied assumption of risk happens when the defendant owes you a duty of care, but you have knowledge of the risk and voluntarily accept it. If you go bungee jumping, you know the risks associated with the sport. However, even if you understand the risk involved, the company you hire to go bungee jumping still owes you a duty of care. You can seek compensation if you suffer injuries because of another party's negligence or intentional acts.
Express Assumption Of Risk
Operators of risky attractions throughout Las Vegas require participants to expressly assume injury and death risk. You and the operator must sign an assumption-of-risk contract. According to this contract, you accept that you will not seek compensation if you are injured. You will abide by this agreement even if you suffer injury because of the operator's negligence.
When you sign a waiver before participating in a dangerous activity, you acknowledge that you are aware of the potential hazard. The liability waiver states that you agree to participate in the risky activity despite knowing the risks involved. However, even if you sign the liability waiver, you can still file a personal injury lawsuit under some circumstances.
A typical scenario of an express assumption of risk is the waiver you sign before you use the gym. The waiver states that you acknowledge that using gym equipment is risky. When you sign the waiver, you agree that you are assuming the chance that you could suffer injuries at the gym.
Express assumption of risk contract is usually combined with liability waivers. You cannot negotiate this contract. You either enter into this agreement or stop participating.
Many people participate in expressed-risk activities without even realizing it. The following are accidents and injuries often covered by the assumption-of-risk contract:
- Accidents and injuries that occur in the gym
- Accidents that occur at sports car racing facilities
- Accidents that occur in go-kart racing
- Injuries that occur during rock climbing
- Participating in skydiving activities
- Water and amusement park activities
You could enter into an express assumption of a risk contract verbally. In most cases, the expressed assumption of risk does not require a signature for consent. In most situations, someone will verbally explain the risks and request that you agree to accept them.
Whether You Can File a Case If You Have Expressly Assumed a Risk
Sometimes, you can file a case against a defendant even if you have assumed the risk of an injury. You could still petition the defendant if you were unaware of the actual risk or did not fully appreciate the danger.
You can still file a claim even when you sign a liability waiver. The person who requests that you sign an express assumption of risk agreement can expose you to unexpected risk. For example, you can sign a waiver at the trampoline park. However, the park owner leaves the trampoline with exposed springs or frayed netting. If you suffer injuries, you can still seek compensation. You can point out in court that you did not agree to the risk the other party exposed you to.
The express assumption of risk is not applicable if you do not enter the agreement voluntarily. This is always encountered with an agreement that involves a child. Children below 18 years are legally prohibited from entering an agreement, but only a few cases are permissible. Parents or guardians are also not allowed to bind their children contractually.
Whether Assumption of Risk Agreements Are Enforceable
The express assumption of risk agreements is legally enforceable. However, this can only happen if the following conditions are followed:
- You accept the risk voluntarily, without trickery or coercion
- You appreciate the danger resulting from the risk
- You are aware of the risk involved in a conduct or activity
Voluntary Consent
It must be evident that the plaintiff consented to assume the risk voluntarily. The agreement will not be enforceable if there is evidence of misrepresentation, coercion, or a lack of understanding. If the defendant tricked you or forced you to assume the risk, you can still seek compensation for the injuries you suffered.
Clear And Unambiguous Language
The agreement's language should clearly outline all the risks involved and the participant's acceptance of these risks. Ambiguous or vague terms can render the agreement unenforceable. The agreement must have simple wording that is easy to interpret.
Knowledge Of The Risks
Under Nevada law, the assumption of Risk applies to risks inherent in an activity. These can include risks from participating in adventure sports like skiing. The assumption of risk agreement does not cover risks not inherent to an activity. If the risks arise due to the provider's negligence, they will not be covered under the agreement.
Illegal Activities
Agreements involving illegal activities or that violate public policy are not enforceable. For example, an agreement could be deemed a violation of public policy if it relieves a party of liability for gross negligence or intentional misconduct.
Minors Cannot Appreciate The Risk
Agreements signed by or on behalf of minors will face additional scrutiny. Some agreements will not be enforceable against minors or guardians.
Express assumption of risk Agreements And Liability Waivers
According to Nevada's "assumption of risk" laws, liability waivers are legally enforceable agreements. Liability waivers are usually required before a patron is allowed to participate in a physical activity, which increases the risk of injury. The activities could include rock climbing, shooting automatic weapons at a gun range, or sports car racing.
If you sign liability waivers, you cannot seek compensation for injuries related to the activity. You will also be unable to recover damages for unrelated injuries caused by the employees' or operator's negligence.
A liability waiver is enforceable if:
- It does not excuse more than ordinary negligence
- The crucial provisions are not buried
- Its conditions are not hidden in the fine print
- An average person can easily understand it
The Steps To Take Before Signing A Liability Waiver
You should consider the following precautions before you engage in any activity that requires you to assume a risk:
Check The Operator's Safety Record
Online resources have a comprehensive list of amusement park attractions. You can learn about potential risks by searching for the name of the specific attraction on Google or reading online reviews.
Ensure Your Medical Insurance Is Current
Some facilities claim that insurance is part of their admission fee. However, the limits might not be high enough to cover your injuries, even if the insurance applies. Additionally, the insurer will likely delay paying you even if you ultimately prevail in a claim. You can cover your medical bills if you have a good medical insurance policy in case you are injured, no matter who is liable.
Request To Evaluate The Facility Before You Sign
You will know how diligent employees are through visual inspection of the facility. Consider taking your business elsewhere if you see signs that the facility has not been well-maintained.
Comparative Negligence and Assumption of Risk
The difference between the primary and secondary implied risk assumption is that you are completely barred from seeking compensation under the primary implied assumption of risk. You are not allowed to claim anything because the defendant does not have a duty of care to prevent inherent or obvious risks of injury. On the other hand, the defendant owes you a duty of care under the secondary assumption of risk.
The question that is always asked is: to what extent do you voluntarily accept risks resulting from the defendant's negligence?
Typically, Nevada's law on comparative negligence applies to a secondary assumption of risk case. According to this law, you have a right to seek compensation following an accident if you were no more than 50% to blame for your injuries. The court would reduce your final payout by your percentage of fault in these "shared fault" cases. No matter your injury's seriousness, you are entitled to no compensation if you are more than 50% at fault.
Apportioning Blame
The jury will return the following verdicts if he/she establishes that you are entitled to recover damages following an accident:
- A regular ruling showing your total damages without taking into account your fault
- A special ruling showing the percentage of negligence attributable to each party
The judge will reduce your damages by the percentage of the accident attributable to you as long as your shared fault is 50% or less.
If More Than Two People Are At Fault
Comparative negligence law could still apply in this case, but the calculations will become complicated. The most at-fault person could have their recovery entirely offset by what he/she owes the other person.
However, the following cases do not use shared fault:
- An injury to any individual or property arising from a product that is produced, used, sold, or distributed in Nevada
- The defendant's concerted acts
- The spillage, disposal, or emission of a toxic or hazardous substance
- Intentional torts like false imprisonment, assault, battery, and intentional infliction of emotional distress
- Strict liability
Assumption of Risk is an Affirmative Defense
Under the Nevada negligence law, the assumption of risk is an affirmative defense. This means that the defense can raise it in response to the claim filed against them. An affirmative defense or argument introduces evidence to negate liability even if there is proof of negligence. If the defendant raises this defense, it will be up to them to convince the jury that the victim assumed the risk. The jury will decide the questions of facts, including whether the victim assumed the risk.
The at-fault parties can use the assumption of risk defense in personal injury cases by
arguing that the plaintiff took the risk knowingly and intentionally. The defendant will affirm that the plaintiff understood the inherent danger. If the court establishes that the victim assumed the risk, it can reduce or eliminate the potential compensation. The court can rule that the defendant is not liable for any injuries.
assumption of risk Could Be Void For Public Policy
You cannot assume the risk in some cases. This consideration applies to mandatory public education and emergency medical services. You cannot assume the risk of an intentional conduct or act. Even if you sign a liability waiver, you can still sue if the other party engages in an activity to hurt you on purpose.
Consider this: You can sign a liability waiver when entering a trampoline park, but the owner may place a sharp object under the trampoline to hurt you intentionally. You can still file a claim against the park owner in this case. You must have the capacity to consent for the agreement to be valid. A minor cannot sign a waiver or appreciate the risks involved in an activity.
Find an Experienced Personal Injury Attorney Near Me
If you or someone you know suffers injuries and are concerned about the assumption of risk in your claim, you should contact an attorney immediately. The assumption of risk is just one of the issues that could arise in a personal injury case. An experienced attorney will evaluate your case to determine if the assumption of risk applies.
At the Las Vegas Personal Injury Attorney Law Firm, we have experienced attorneys with a deep understanding of the intricate laws surrounding Nevada's assumption of risk laws. We will advise you whether the assumption of risk prevents you from filing a successful case for recovery. Our attorneys will also help you identify other crucial issues in your case and offer expert advice. We take pride in being the go-to personal injury attorneys throughout Las Vegas. Contact us at 702-996-1224 to speak to one of our attorneys.
