Assumption of Risk Explained

During a personal injury case, one defense that may be raised in order to prevent a payout to the injured party is the assumption of risk affirmative defense. The underlying assertion bolstering this legal doctrine is that in some personal-injury situations, the victim understood that a potential for injury existed and still subjected him or herself to the potential danger. Therefore, the plaintiff, not the defendant, is responsible for the injury that occurred. If this defense is used successfully, the defendant is not considered liable for the injury. 

This defense is often used in situations where the victim voluntarily engaged in sports games and other recreational activities. Premises liability cases may also involve the assumption of risk doctrine; “no trespassing” signs effectively shift legal responsibility to the victim. There are generally two different distinctions of assumption of risk: express and implied. 

Express Assumption of Risk

Express assumption of risk applies when the injured party is shown to have entered into a contract that waives liability for the defendant. For defendants to successfully use express assumption of risk, they must show that the waiver was clearly communicated and the injury occurred during activity that is expected under the scope of the waiver. In other words, if the defendant was grossly negligent, the waiver may not be sufficient to absolve liability. 

Implied Assumption of Risk

Conversely, implied assumption of risk may be raised when there is no express contract between the plaintiff and defendant. This is more difficult for defendants to use than express assumption of risk. Through the plaintiff’s actions and words, he or she infers that knowledge of potential danger is implied.

Contributory Negligence in Alabama

Alabama is one of the few states that does not employ the comparative negligence rule. Instead, Alabama uses the contributory negligence doctrine. Under this rule, any plaintiff that is found to be at least partially at fault may not recover damages in a personal injury lawsuit. Because of this strict requirement, it is crucial to retain the services of a quality personal injury attorney who is familiar with Alabama laws related to civil liability. 


If you are going up against a company with plenty of resources to fight your personal injury suit, there is a good chance the assumption of risk defense may be floated as a defense. To successfully use this defense, courts use the preponderance-of-the-evidence standard, which is a lower standard than others used in court. 

To get in touch with an experienced Alabama personal injury lawyer, contact John M. Totten, P.C. Attorney at Law. We offer free consultations to prospective clients in all injury matters.

John M. Totten