In the few states where the Contributory Negligence Rule applies, "assumed risk" may be valid basis of denial of a claimant's personal injury claim. Basically, if a person’s actions contribute to or are partially to blame for the accident he or she will not be able to recover their damages from the other driver. In these states, the "assumed risk" or "assumption of risk" defense is usually the only way an insurance carrier can deny a passenger’s personal injury claim. Since a passenger is literally just along for the ride and is not in control of any vehicle, how can their personal injury claim be denied?
The term "assumption of risk" simply means that the injured person realized the risk inherent in situation that caused his injury, yet still became involved in the situation: that somehow the passenger assumed the risk of being involved in an accident and is therefore barred from making a claim against any driver. An example might be a case where a sober passenger knowingly entered a vehicle being driven by someone who was obviously intoxicated. It would be reasonable to expect that the intoxicated person might have an accident: the passenger accepted that risk when they got into the car.
Most assumption of risk cases do involve an intoxicated driver and a passenger who knew about the impairment. There are other examples, but these cases arise less often. For example, the injured person may have been a passenger who knowingly entered a vehicle being driven by a person with a lengthy record of speeding violations resulting in a multitude of accidents. A passenger may egg a driver on to race other vehicles on the highway. Teenagers who willingly surf on the hoods of their friends’ moving vehicles and fall off will probably find their claims denied for assumption of risk. Any case where a passenger should realize that there is a high likelihood of an accident occurring yet proceeds to participate gives insurance companies a chance to raise an assumption of risk defense. The greater the opportunity the passenger had to exit the vehicle prior to the accident or not enter it at all, the stronger the insurance company’s defense will be.
If you were a passenger injured in a motor vehicle accident and your personal injury claim has been denied based on assumption of risk, this may be one of the few times we take a side and encourage you to seek legal counsel. In many jurisdictions, an assumption of risk is difficult to prove. Many potential jurors still believe that passengers simply cannot be denied.
This article is not intended to take the place of competent local legal counsel.
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