What Is Assumption Of Risk And How Does It Affect Your Personal Injury Claim?
You got hurt. Someone else caused it. You file a personal injury claim expecting justice… only to hear the other side say, “Well, you knew the risks.”
That’s the assumption of risk defense, and in Florida (and most states), it can be a serious roadblock to your recovery. But here’s the truth: it’s not a magic “get out of liability free” card. If you know how it works and how to fight it, you can still win.
At Madonna Law Group, we’ve taken on cases where insurance companies tried to play the assumption-of-risk card. And we’ve beaten it. Let’s break down what it really means.
What Is Assumption of Risk?
Legally, assumption of risk means you voluntarily and knowingly accepted the dangers of an activity and got hurt anyway. The defense boils down to:
“You agreed to the danger, so you can’t sue me when it happens.”
It comes in two main forms:
- Express Assumption of Risk
This is the waiver you signed before skydiving, joining a gym, or attending a sports camp. If you agreed in writing not to hold the other party liable for injuries, they’ll argue you gave up your right to sue.
But not all waivers hold up, especially if the wording is vague, overly broad, or against public policy (Florida Courts – Contracts and Waivers).
- Implied Assumption of Risk
No waiver. No paperwork. Just your actions showing you knew the danger and went ahead anyway. For example, stepping onto a clearly wet floor or walking onto the field in a full-contact sport.
Primary vs. Secondary Assumption of Risk
Courts also separate it into two categories:
- Primary: The risk is inherent in the activity, and the defendant had no duty to protect you from it. Example: Getting tackled in football.
- Secondary: The defendant did owe you a duty (like keeping premises safe), but you ignored warnings or took on the risk anyway. This doesn’t automatically kill your claim but may reduce your damages.
If the defense can prove you assumed the risk, two things can happen:
- Your claim gets denied completely. That’s common with primary assumption cases.
- Your compensation gets reduced. In Florida’s comparative negligence system, if you’re found partially at fault (like 30% responsible), your award is reduced by that percentage.
This is why the defense loves assumption-of-risk arguments—it’s a way to slash payouts or dodge them entirely.
Fighting the Assumption of Risk Defense
The fact that you were aware of some risk doesn’t mean you accepted all risks, especially hidden, unreasonable, or reckless ones. We’ve challenged these defenses successfully by showing:
- The risk was not clearly communicated or obvious.
- The waiver was poorly drafted, overbroad, or unenforceable.
- The injury was caused by negligence beyond the normal scope of risk (e.g., faulty equipment at a gym).
- You didn’t voluntarily consent—maybe you had no real choice (work requirements, emergencies, etc.).
Example. You sign a waiver for a zipline course, acknowledging the “inherent risks.” Halfway across, the harness snaps because the company failed to maintain it. They’ll argue you assumed the risk. But faulty gear isn’t an inherent part of the sport—it’s negligence. In that case, the waiver wouldn’t protect them.
What You Should Do If You Hear “You Assumed the Risk”
Here’s what you should do if the other side is trying to dodge liability by arguing you knew about the risks:
- Save all documents (waivers, tickets, receipts, etc.)
- Get photos/videos of the hazard, equipment, signage (or lack of it).
- Write down your memory (what you were told, what you saw, and whether you felt pressured to proceed).
- Call an attorney immediately (ideally, this should happen before you respond to the insurance company).
At Madonna Law Group, we know the playbook for the assumption-of-risk defense. Our Dade City personal injury attorney reviews every waiver and contract for legal weaknesses, investigates whether the hazard was truly part of the activity (or the result of negligence), and negotiates from a position of strength, ready to go to trial if needed.
The Other Side Plays the Assumption-of-Risk Card? Contact Us Now
Assumption of risk is not an automatic case-killer. It’s a defense that can be beaten with the right strategy, the right facts, and the right lawyer.
Contact Madonna Law Group today for a consultation. If someone’s trying to use “you knew the risk” against you, we’ll fight back so you get the compensation you deserve. Call at (352) 567-0411 today.
