Assumption of risk is a legal defense that is often raised in personal injury claims involving motor vehicle accidents. However, this defense is commonly raised incorrectly by many insurance adjusters dealing with cases in North Carolina. Assumption of the risk arises from the idea that everyone should act with due care. It acts as a bar to the plaintiff receiving compensation for injuries suffered if the plaintiff knew of the risk created by the defendant and voluntarily placed himself in a position to be injured by it. This defense does not apply if the plaintiff did not know of the specific risks involved. The knowledge of the risk may be actual (direct and clear) or constructive (based on the surrounding circumstances).
It is important to note that under North Carolina law, the defense of assumption of the risk does not exist where there is no contractual relationship between the parties involved. The plaintiff assumes the risk involved through express assumption of the risk or implied assumption of the risk. With this being said, assumption of the risk does not often apply to car accidents, as there is no contractual relationship formed.
Types of Assumption of Risk
Express assumption of risk occurs when the plaintiff outwardly agrees or accepts the risk, whether verbal or written. For example, if you decide to go sky diving, prior to beginning the activity you will sign a waiver of liability that states you know of the risks associated with skydiving and you still wish to participate in the activity. By signing the waiver of liability, you have accepted the exposure of risk.
Implied assumption of the risk occurs when the plaintiff accepts the risks through his own voluntary behavior. For example, you have knowledge that a driver does not have a driver’s license, but you voluntarily get into the vehicle as a passenger anyway. In this scenario, by getting into the vehicle with an unlicensed driver, you have implicitly accepted the exposure of risk.
Important Note: This example would not apply in North Carolina because assumption of this risk only applies when there is a contractual relationship formed.
Under implied assumption of risk, emergency situations destroy voluntariness. For example, if you jump in front of a moving car to save a child from being hit, your actions would not be considered voluntary due to the urgency of the situation to save the child’s life. A situation where there is an absence of an alternative also destroys voluntariness.
Overall, assumption of risk is commonly misapplied in North Carolina by many insurance adjusters. This defense does not apply to any unknown dangers or risks, and it does not apply if there is no voluntary contractual relationship between the parties. If there is no contractual relationship, the defendant cannot use this defense to bar the plaintiff’s recovery.