Primary Assumption of Risk Vs. Secondary Assumption of Risk
When someone suffers injury or damages in the course of using a product or service, or as the result of an accident, the assumption of risk acts as a gauge for determining the party at fault. When deciding who's at fault, courts involved in personal injury lawsuits assign primary versus secondary assumption of risk based on whether a plaintiff or defendant bears all or part of the blame involved.
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Assumption of Risk
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A person can agree to an assumption of risk in written or contract form, or through implied consent. Written contracts may appear as a waiver of liability or an acknowledgment of inherent risks. An implied consent to an assumption of risk has more to do with a person's actions and actual knowledge regarding a situation. In personal injury cases, the "accused" defendant can use an assumption of risk defense as a way to make the plaintiff responsible for his own actions. In doing so, liability and fault fall on the plaintiff, since he knowingly engaged in the activity that caused injury or damage. When a defendant can prove her accuser was aware of the risk involved and voluntarily engaged in the activity that caused an incident, the assumption of risk falls on the plaintiff.
Defendant's Responsibility
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Primary assumption of risk refers to the role a person assumes when engaging in a particular activity or incident. With personal injury cases, a plaintiff who gives written or implied consent takes on a primary assumption of risk, meaning he carried out a particular act knowing the risks involved. In other words, the defendant holds no responsibility in causing or allowing the incident to happen. A defendant's responsibility may become a factor in cases where the victim encounters an unexpected risk, such as slipping on a wet floor in a store. In terms of primary versus secondary assumption of risk, any responsibility on the defendant's part means the defendant carries a secondary assumption of risk.
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Plaintiff's Actions
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A plaintiff's (or victim's) actions in the events that lead up to an accident can, in some cases, shift a secondary assumption of risk off of the defendant. For example, the product warning on a ladder may advise against standing on the top step. In this case, the person on the ladder increases the degree of risk involved by not following a product warning label. In the case of a fall and resulting injury, the courts may lessen or even eliminate a secondary assumption of risk because of the plaintiff's actions. Secondary assumption of risk applies in instances where a defendant fails to issue proper warning against certain actions. When the plaintiff disregards these warnings, she takes on a primary assumption of risk.
Comparative Negligence Rules
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Comparative negligence rules may play a part in determining primary versus secondary assumption of risk in cases involving personal injury and property damages. As each state or jurisdiction follows its own set of laws, comparative negligence rules provide guidelines for determining how much each party pays out based on who's at fault. When both plaintiff and defendant carry some degree of fault, comparative negligence rules allow courts to assign percentage costs to each party based on the degree of fault each party holds. Some court systems may refuse to grant an award to a plaintiff in cases where the plaintiff carries more blame, percentage-wise, than the defendant. Other court systems may only grant an award in cases where the plaintiff carries a smaller percentage of fault, or blame, than the defendant.
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