“Assumption of risk” is a legal principle that asserts that the plaintiff – or the person filing the car accident claim – knew of the risks associated with a certain activity yet voluntarily engaged in the activity anyway.
It can be used by a car insurance company to diminish or bar a plaintiff’s right to recover financial compensation in North Carolina.
What Is Assumption of Risk?
Assumption of risk is a defense that alleges that the plaintiff in a personal injury or car accident case assumed (or knowingly took on) a certain amount of risk that an injury would arise out of an action or activity, yet chose to engage in the activity anyway.
An example would be if you were a passenger in someone else’s car and knew that the person driving had been drinking alcohol. In this situation, an insurance company may argue that you assumed the known risks of riding with an intoxicated driver – weakening or even barring your claim.
There is implied and express assumption of risk. Implied means the plaintiff accepted a foreseeable risk through his or her own voluntary action or behavior. Express assumption of risk occurs when the plaintiff outwardly accepts a risk, such as by signing a waiver.
What Does an Insurance Company Need to Prove Assumption of Risk?
A plaintiff’s assumption of risk could disqualify him or her from an insurance settlement after a car crash in North Carolina. However, the insurance company has the burden of proving this defense. It will not apply if the following cannot be proven:
- The plaintiff was aware of the specific risks involved with the activity.
- The plaintiff chose to participate in the activity despite being aware of known risks.
The claimant’s knowledge of the risk in a car accident case could be actual or constructive. Actual knowledge is direct and clear, such as actually knowing that a behavior is risky. Constructive knowledge is based on whether a reasonable person would have presumed that an activity or behavior was dangerous.
How Can Assumption of Risk Affect My Settlement in North Carolina?
Assumption of risk is an especially popular defense for a car insurance company to use in North Carolina because of the state’s strict contributory negligence law. Unlike most other states, North Carolina does not allow for any financial recovery when the victim shares fault for an accident.
If the plaintiff is found to be even 1 percent at fault for a car accident or injury, this will completely bar them from collecting financial compensation from another party. If the assumption of risk defense succeeds, therefore, the victim will lose all right to pursue a financial recovery – even if the defendant is 99 percent at fault.
The Importance of Contacting an Attorney if You’re Faced With the Assumption of Risk Defense
If you filed a car accident claim in North Carolina only to have it rejected based on the “assumption of risk” defense, you need to contact a local lawyer for legal assistance without delay. This defense could jeopardize your ability to recover compensation for your medical bills, property damage, lost wages and other crash-related losses.
An attorney from Shipman Wright & Moore, LLP, can counter this defense with smart legal strategies, clear evidence and compelling storytelling to protect your financial recovery. Call us at (910) 762-1990 to learn more during a free consultation.