I’ve discussed the doctrine of contributory negligence in another chapter of this series. A similar concept sometimes asserted as a defense to a personal injury claim is ‘assumption of the risk’. Insurance companies may employ this as an argument during settlement discussion in an attempt to drive down the value of a case. The may instruct their attorneys to defend the case on this basis in court. Whereas contributory negligence involves someone not exercising due care for their safety:
Assumption of the risk involves someone, with full knowledge and understanding of a known danger, voluntarily putting themselves in harm’s way.
This is a defense often raised by insurance companies facing claims of those who have fallen on ice and snow. Their position is that a reasonable person would no walk across ice, or, that a reasonable person, with common sense knowledge of weather conditions, would not venture out. Insurance companies are obligated to advance reasons for denying a personal injury case. Many claims denials strain credulity. This, actually, is one of the more reasonable positions we've seen the insurance industry take. In fairness, it does make some sense. The argument, though, doesn't take in to account things like:
- black ice, or
- those who have no alternative means to get in or out of their residence
This is a defense that has proven effective with both judges and juries, to that extent that many attorneys do not take on cases involving falls on ice.
-This Article was updated by Eric Kirk on 6/11/20.