How The Assumption Of Risk Can Hurt Your Motorcycle Injury Case

When you're involved in a motorcycle accident, the facts of the case may seem pretty cut and dried to you. However, there are a variety of factors that contribute to whether you'll successfully recover compensation for your injuries and losses. One of those factors is the concept of assumption of risk. Here's how this legal defense can impact your case.

What is Assumption of Risk?

Assumption of risk is a legal defense that states the plaintiff in the case was aware of the risks inherent in an activity and willingly participated nonetheless. Because of this, the defense argues the plaintiff should not be allowed to recover damages or be held partly liable for the outcome. For instance, a person who agrees to be the rear passenger assumes some of the risks associated with riding a motorcycle and, therefore, may be limited in the type or amount of compensation he or she can recover.

To be sure, the assumption of risk does not excuse a person's liability in every situation. While you do assume a certain amount of risk when you get on the highway, for example, drivers and other motorcyclists are expected to exercise due care when driving. If someone hits you because he or she was talking on a cell phone, that person would still be liable for compensating you for your losses because the individual failed to adhere to the rules of the road.

Even if you sign contracts or waivers stating you understand the risk of participating in the activity and agreeing to not sue for damages if you got hurt, the contract can be voided if

  • The contract violates the law or public policy
  • The incident that caused the injury was intention (e.g. a car ran into you on purpose)
  • The person who signed the contract did not have the mental capacity to understand the terms (e.g. people with mental or learning disabilities)

Still, there are some ways the assumption of risk can work against you.

When Assumption of Risk Can Tank Your Case

The most obvious way the assumption of risk can hurt your case is when someone informs you of the risks involved in the activity you're undertaking and you opt to participate anyway. For instance, there is signage on a road advises riders of construction underway. A person who falls into a clearly marked ditch would have a hard time prevailing in a lawsuit were it to go to court because the person was advised of the risk and proceeded anyway.

In cases like these, you would have to show something occurred above and beyond the anticipated risks or you were not adequately advised of the dangers you may face. For example, if a tent pole was set up improperly and it caused you to crash by falling in the road you were riding on, you would be able to collect damages for your injuries because that wasn't a risk you could have reasonably anticipated.

Another way assumption of risk can hurt your case is if the defense can prove you should have already known about the risks involved in the activity, regardless of any duty the other party may have had to warn you. This is frequently seen in cases where the plaintiff has prior experience with the venture in question.

A perfect example of this involves a man who injured himself while riding a dirt bike in the area near a cabin he and his family had rented. The plaintiff claims he struck an object during the ride that caused an accident and subsequent injuries. However, he also testified he had ridden paths in the area for at least 30 years and knew it could be risky. The jury returned a decision in the defendant's favor because they felt the plaintiff assumed the risks for his injuries partly based on his past experiences.

This also plays out in a similar fashion when it comes to waivers and contracts. Another example involves a couple who was injured when they participated in a 2006 charity motorcycle ride event. The couple had participated in other charity rides with the same organization and had signed waivers at those previous events. At the event in question, however, they did not sign a release and were unfortunately injured in a collision with a van during the ride. The court found in favor of the defendant because the couple's previous experience meant they knew the company required them to sign a release.

To overcome this issue, you would have to show the defendant somehow increased the level of risk inherent in the activity.

If there are circumstances in your case you feel may inhibit your ability to win, it's best to discuss them with an attorney from a site like who can help you develop a strategy for overcoming those challenges.