Whether you are visiting casinos in Las Vegas or are a Nevada resident, there are many different ways in which you take risks. For instance, when you are gambling at a casino, you take a risk with your money. When you walk down the sidewalk or drive along the Strip, you are taking certain risks with regard to your safety and your personal injury. For example, in walking or driving on the Strip, you are taking a risk that another driver could behave in a negligent way and crash into you in a car accident.
There are a lot of other risky activities that Las Vegas guests and residents take, too, and some seem riskier than others. For instance, Las Vegas is known for having indoor skydiving facilities, and even some outdoor skydiving options. Such an activity is clearly risky, right? But when can the risks that you decide to take mean that someone else is not liable in the event of an injury?
In some situations when a plaintiff files a personal injury lawsuit, the defendant comes back with the defense of assumption of the risk. What do you need to know about assumption of the risk and how it could affect your personal injury case?
When you hear about “assumption of the risk,” you might not know exactly what it means. This is a legal doctrine, or a legal concept, that can be used as an affirmative defense in a personal injury lawsuit when a plaintiff suffered injuries while doing something that was dangerous in some way. To put it another way, “assumption of the risk” suggests that a plaintiff who got hurt knew that she was engaging in a risky activity, and in making the decision to participate in the activity, the plaintiff in some way assumed the risks so that the defendant was not liable.
When we say that assumption of the risk is an affirmative defense, we mean that it is a defense that a defendant raises after a plaintiff files a lawsuit. So, the plaintiff files a personal injury claim, and in order to avoid liability, the defendant raises an affirmative defense.
What are the elements of an assumption of the risk defense? Under Nevada law (Nev. J.I. 4.16), a defendant must be able to show all of the following by a preponderance of the evidence in order to avoid liability for the plaintiff’s injuries:
Plaintiff had actual knowledge of the risk;
Plaintiff fully appreciated the danger resulting from the risk; and
Plaintiff voluntarily exposed himself to the danger.
To be clear, the defendant must prove all three of the above in order to have a successful assumption of the risk defense. And what does the law mean when it says a preponderance of the evidence? It simply means that more of the evidence weighs in favor of those elements than not. The Cornell Legal Information Institute (LII) explains that a preponderance of the evidence is “a requirement that more than 50 percent of the evidence points to something.”
You now may be asking yourself: if I got injured in Las Vegas and I believe another party’s negligence caused by injuries, how do I know if I actually assumed some risk? And if I did assume risk, was it enough to meet the elements of an assumption of the risk defense such that I cannot recover anything? We will outline some hypothetical scenarios in which personal injuries may occur in Las Vegas, and then we will discuss some different types of assumption of the risk defenses to discuss whether the plaintiff may have assumed the risk in those scenarios.
To better illustrate how assumption of the risk works, we want to give you a few hypothetical scenarios to keep in mind as we discuss different types of assumption of the risk. Here are some scenarios:
Keep these scenarios in mind as we go through a brief discussion of different forms of assumption of the risk.
Defendants can argue both express assumption of the risk, as well as implied assumption of the risk. What is the difference between the two? Express assumption of the risk typically refers to an activity in which a person signs a waiver prior to participating in an activity that has some inherent dangers or risks. In signing a waiver, a person indicates that she understands the potential dangers involved in participating in the activity. But just because a person signs a waiver does not mean that she will always have assumed the risk and that the defendant is not liable. Keep in mind that, in signing a waiver, it must be clear that the plaintiff had actual knowledge of the risk, fully appreciated the danger, and decided to participate anyway.
Implied assumption of the risk does not involve a waiver, and usually does not involve the plaintiff ever having agreed to participate in an activity that has inherent risk. However, a defendant can argue implied assumption of the risk when a plaintiff has voluntarily decided to participate in a risky activity. Implied assumption of the risk can be a successful affirmative defense if the defendant can show that the plaintiff had actual knowledge of the risk, fully appreciated the danger, and decided to participate anyway.
Keep in mind that whenever the defendant was negligent—such as failing to clean up a spill, or failing to properly maintain equipment—an assumption of the risk defense likely will not work. And you can still file a claim even if you think you might have assumed some risk.