Accidents occur when least anticipated, frequently subjecting victims to severe physical, psychological, and economic consequences. It could be a car accident, work injury, slip-and-fall, or other incident; the impact is sometimes irreparable. The law in California entitles victims to compensation when they suffer injuries due to the carelessness or unlawful actions of another person. However, it can be a complicated process to go through the law, and knowing your rights is essential to getting the maximum compensation that you deserve.
Making a claim for an accident requires strong evidence, proof of liability, and negotiation with insurance companies—frequently while recovering from injuries. Without legal advice, most victims get shortchanged or fail to establish fault. This guide explains how accident claims work in California, the amount of compensation you are likely to receive, and how an attorney can help your case.
What is Assumption of Risk?
An accident claim is a legal demand for reimbursement following an injury or property damage resulting from the negligence or misbehavior of another party. These claims are aimed at bringing victims back to their pre-injury financial and physical state through reimbursement of medical costs, lost earnings, and other losses.
Key Elements of Assumption of the Risk
For assumption of the risk to apply, the defendant must prove the following:
- The Plaintiff Knew About the Risk – The injured party must have been aware of the potential dangers associated with the activity.
- The Plaintiff Voluntarily Accepted the Risk – The injured party must have freely chosen to participate, despite knowing the risks.
For instance, if someone goes skydiving, they realize that jumping out of an airplane is full of risks, like parachute failure. If they get hurt while jumping, the skydiving firm can employ assumption of the risk in defense, claiming that the jumper voluntarily participated in a risky activity.
However, this defense does not apply in every case—especially if negligence was involved.
Types of Assumption of the Risk
There are two main types of assumption of the risk: express and implied.
1. Express Assumption of the Risk
Express assumption of the risk occurs when an individual explicitly agrees to accept the dangers of an activity, usually by signing a waiver or contract.
Examples of Express Assumption of the Risk
- A gym member signs a waiver acknowledging that they assume the risks of injuries from using workout equipment.
- A race car driver signs a release form before participating in a dangerous competition.
- A customer at a trampoline park signs a liability waiver before using the facility.
These waivers are often enforceable, but they do not protect businesses from gross negligence or intentional misconduct.
2. Implied Assumption of the Risk
Implied assumption of the risk occurs when a person’s actions demonstrate their understanding of the danger, even if they did not sign a waiver. This applies when a person knows the risk exists and still chooses to engage in the activity.
Examples of Implied Assumption of the Risk
- A football player knowingly participates in a full-contact game, despite the risk of injury.
- A spectator at a baseball game sits near the field, accepting the risk of being hit by a foul ball.
- A hiker treks through rough terrain, despite visible warning signs about potential rockslides.
In these situations, the defendant does not need written consent to claim assumption of the risk because the plaintiff’s actions indicate they knew the dangers.
When Assumption of the Risk Does Not Apply
Assumption of the risk is a strong defense, but it does not apply in every case. Victims may still have a valid claim if the defendant acted negligently or recklessly.
Exceptions to Assumption of the Risk
- Gross Negligence or Intentional Misconduct
- If a business or person acts recklessly or intentionally causes harm, they cannot use assumption of the risk as a defense.
- Example: A ski resort fails to maintain its slopes, causing an avalanche that injures a skier.
- Defective Equipment or Unsafe Conditions
- If an injury results from faulty equipment or an unsafe environment, assumption of the risk may not apply.
- Example: A skydiving company provides a defective parachute, leading to an accident.
- Failure to Provide Proper Warnings
- If a person is not adequately warned about the dangers of an activity, they cannot assume a risk they were unaware of.
- Example: A theme park ride malfunctions due to poor maintenance, and visitors were not informed of the risk.
- Violations of Safety Laws
- If the defendant violated safety regulations, they may still be liable, even if the plaintiff accepted some risk.
- Example: A construction company does not provide proper safety gear, leading to a worker’s injury.
These exceptions show that assumption of the risk does not protect negligent parties from being held accountable.
Assumption of the Risk in California Personal Injury Cases
California courts recognize assumption of the risk as a defense in personal injury lawsuits, particularly in cases involving:
- Sports and recreational activities
- Amusement parks and extreme sports
- Premises liability claims
- Workplace injuries
However, California has a comparative negligence standard, so a victim could recover damages even if he took on some amount of risk. Judges would lower the compensation depending on the degree of responsibility the victim bore for the injuries.
For instance, if a mountain climber is reckless and neglects warning notices regarding hazardous weather conditions and injures themselves, a court would reduce their payment in accordance with their level of responsibility.
How an Attorney Can Help with Assumption of the Risk Cases
If you were injured in a situation where assumption of the risk may be a factor, an experienced personal injury attorney can help:
- Determine if the defense applies to your case
- Prove negligence if the other party failed to take reasonable precautions
- Challenge unfair liability waivers
- Negotiate settlements for medical bills, lost wages, and pain and suffering
- Represent you in court if needed
Even if the defendant claims you assumed the risk, that does not automatically mean they are free from liability. A skilled lawyer can analyze the facts of your case and determine whether you are still entitled to compensation.
Legal References:
- Espejo v. The Copley Press, Inc. (2017) 13 Cal.App.5th 329. See also ABC Test, California Department of Labor.
- California Labor Code 2775 LAB. See also California Civil Jury Instructions (CACI) No. 2705. See also, for example, Bowen v. Burns & McDonnell Engineering Co., Inc. (Cal.App. 2024) .
- California Labor Code 2775 LAB.
- California Labor Code 2775(b)(1)(A) LAB.
- Dynamex Operations West, Inc. v. Superior Court of Los Angeles County (2018) 4 Cal.5th 903, 958. See also Vazquez v. Jan-Pro Franchising Internat. (2021) 10 Cal. 5th 944.
- Dynamex, supra note 5, citing Western Ports v. Employment Security Department (2002) 41 P.3d 510.
- Dynamex, supra note 5, citing Fleece on Earth v. Department of Employment & Training (2007) 181 Vt. 458.
- Dynamex, supra note 5, citing Great Northern Construction, Inc. v. Dept. of Labor (2016) 161 A.3d 1207.
- Dynamex, supra note 5, at 959-961.
- Dynamex, supra note 5, citing Dole v. Snell (10th Cir. 1989) 875 F.2d 802.
- Dynamex, supra note 5, at 959.
- Alamo Foundation v. Secretary of Labor (1985) 471 U.S. 290.
- Dynamex, supra note 5, at 961-3.
- Dynamex, supra note 5, at 962. Going into business for oneself often involves taking the following steps: incorporating as a business, advertising, obtaining any necessary business licenses, and making offers to provide business services to the public.
- Dynamex, supra note 5, citing Brothers Construction Co. v. Virginia Employment Commission (1998) 494 S.E.2d 478.
- Dynamex, supra note 5, citing Southwest Appraisal Group, LLC v. Administrator, Unemployment Comp. Act (2017) 155 A.3d 738.
- California Labor Code 2780 LAB. Examples include recording artists or their managers, songwriters, lyricists, composers, or proofers, record producers and directors, musical engineers and mixers, musicians and musical groups, vocalists, and photographers working in the music industry.
- California Labor Code 2782 LAB.
- California Labor Code 2783 LAB.
- Same.
- Same. The licensed professionals include lawyers, architects and landscape architects, engineers, accountants, and private investigators.
- Same.
- Same.
- Same.
- California Labor Code 2778 LAB.
- Same.
- Same.
- Same.
- Same.
- Same.
- California Labor Code 2776 LAB.
- California Labor Code 2777 LAB.
- California Labor Code 2778 LAB.
- California Labor Code 2779 LAB.
- California Labor Code 2781 LAB.
- S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341. Some of those factors of the Borello test are:
- whether the worker is in a distinct occupation or business,
- whether the type of work normally happens under the direction of the employer or by a specialist without supervision,
- how much skill is necessary for the work,
- who supplies the tools and workspace,
- whether or how much the worker invested in their tools or helpers,
- how long the services will be performed,
- whether the worker is compensable based on time spent on the job or upon the job’s completion,
- whether the work is within the purported employer’s regular business,
- whether the parties believe that they are creating an employer-employee relationship, and
- whether the worker can profit or lose from the work based on their managerial skill.
None of these factors are dispositive. - Same.
- Dynamex, supra note 5, at 954.
- Dynamex, supra note 5, at 956, footnote 23. Because the Dynamex decision changed independent contractor misclassification law, it had a huge impact on ridesharing companies like Uber and Lyft that rely on delivery drivers and taxi-like drivers.
- California Labor Code 2785 LAB.
- Daniel Wiessner, 9th Circuit weighs claims that Uber was targeted by Calif. contractor law, Reuters (March 20, 2024).
- California Code of Civil Procedure 338 CCP; California Code of Civil Procedure 337 CCP. While independent contractors do not enjoy these legal and financial benefits, they have more control in how they work. True independent contractors can: choose which days and hours to work, choose and use their own equipment, and take breaks whenever they want. Actual independent contractors only have to satisfy the companies that they contract with in the products and services that they provide. True independent contractors cannot be told how to provide them. They are central to the current gig economy. This is why independent contractor misclassification is a problem in employment law: Employers classify workers as independent contractors but treat them as employees. By doing so, they can control the work that is provided while also avoiding the legal obligations that are owed to employees.
- California Labor Code 226.8 LAB.
About the Author
Neil Bhartia
Neil Bhartia isn’t your typical, stuffy attorney that you see on TV. While some have their sights exclusively on money and treat their clients like a number, Neil takes a personal interest in every single client he has. As an empath, Neil understands that people that seek legal help are typically in an involuntary, and stressful situation, and he goes out of his way to diffuse the stress and educate clients on each every detail of the legal process.
