What Is Assumption of Risk?

Assumption of risk is a legal defense that is often employed in offshore injury claims, as well as in other dangerous occupations. Employers, boat owners, captains, and others will attempt to make themselves immune to lawsuits by claiming that their employees knew the risk of their jobs, and thus cannot sue others when those risk factors result in injury.

This defense hinges on a simple premise: when you signed your employment contract, whether it was for working on a commercial vessel, fishing boat, or jack-up oil rig, you were informed of the general danger of your occupation. When you knowingly began your job, you were assuming the risks inherent to your dangerous line of work. The defense implies that any injury you sustain will be a result of your choices because you knew what you were getting into.

For employees in naturally dangerous jobs, this is a frustrating legal principle. If you are unable to sue your employer for incompetence that leads to injury or harm, how will they ever be made accountable? More importantly, who will provide for you to get better or take care of your family if you are severely harmed? Immunity from liability is unfair to injured workers.

The good news is that the assumption of risk does not always apply. In fact, it is not a blanket immunity from liability for employers and vessel owners, and it does not give them free rein to act negligently. In order for the assumption of risk to apply, you must have been fully aware of the specific risk that directly led to your injury. Simply working on an oil rig is not enough reason for you to bear the burdens of your injuries. Your employer still has a duty of care.

For example, if you are injured because equipment came loose and struck you on a rig, your job’s inherent risks would not bar you from pursuing litigation. It would only bar you if you were aware of the loose equipment and walked under it anyway. In the end, the assumption of risk is intended to keep workers from suing employers for their own negligence.

Proving Assumption of Risk

Most maritime injury jobs expose workers to a higher risk for injury than your average office job, whether it be working on the high seas or in a busy shipyard. However, that doesn’t mean all injury claims are invalid. In fact, most offshore injury victims have strong cases that overrule the assumption of risk defense.

These factors must be proven for a defense to hold up:

• The injured person was aware of the risk of employer negligence involved in their work; and
• The injured person voluntarily accepted this risk.

A congressional amendment to the Federal Employers Liability Act (FELA) in 1939 worked to abolish any assumption of risk defenses for cases brought under the Act. The FELA decision has also been very impactful on negligence actions brought by seamen against employers under the Jones Act. It is important to note that assumption of risk cannot be used as a defense to your claim for admiralty. Comparative negligence, however, may be used by a defendant to try to nullify admiralty claims.

Express vs. Implied Assumption of Risk

Under this type of defense, there are two different types of assumption of risk that a defendant may try to use: express or implied. In order to prove assumption of risk, a defendant must show that the injured party accepted the risk involved. If that acceptance was done through an agreement between the two parties, it would be considered express assumption of risk. This often applies when a written agreement is used to have the plaintiff “assume all risks” associated with their work.

On the other hand, implied assumption of risk refers to cases where there is no written agreement, but some type of oral agreement or agreement through the conduct of the injured party exists. If a plaintiff implies their knowledge or awareness of the assumption of risk through actions or words, this type of defense may be available for a defendant.

Fighting an Assumption of Risk Defense

Remember, unforeseeable risks and dangers cannot be included under an assumption of risk defense. Even if your job has some inherent risks, these risks do not automatically disqualify you from recovering compensation for unforeseeable injuries caused by your employer’s negligent or reckless behavior. Further, you have a right to recover basic compensation for lost wages, room and board, and medical expenses from your employer, regardless of whether or not negligence was involved.

If you have any questions about your offshore injury case, Arnold & Itkin offers free case evaluations to give you guidance and discuss your legal options. Schedule yours today.