Latest / BSPE Legal Marketing Podcast / What Is Assumption of Risk in Virginia? - John P. Fishwick Jr.

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What Is Assumption of Risk in Virginia? - John P. Fishwick Jr. · BSPE Legal Marketing Podcast

• 0:00
  What Is Assumption of Risk in Virginia?
• 0:01
  If you were injured in Virginia, the defendant may argue that you knowingly walked into the very danger that hurt you — and that argument alone could block your entire recovery.
• 0:10
  Assumption of risk is a legal defense that bars an injury claim when the injured person fully understood a known danger, voluntarily chose to face it, and was then harmed by that exact danger.
• 0:21
  Unlike contributory negligence, which asks whether the injured person failed to use reasonable care, assumption of risk zeroes in on what the plaintiff personally knew and chose.
• 0:30
  Virginia courts apply a subjective standard, meaning the focus is on what this particular injured person actually knew and appreciated — not what a reasonable person in their position would have understood.
• 0:41
  The defense can be express or implied, but a signed waiver does not automatically bar a Virginia personal injury claim, because Virginia law does not enforce a pre-injury release that attempts to excuse future negligence.
• 0:53
  Implied assumption of risk can arise from a person's conduct when the evidence shows they understood the specific danger and voluntarily exposed themselves to it anyway.
• 1:01
  In the case of Thurmond v. Prince William Professional Baseball Club, an adult spectator who remained in an unscreened seating area and was struck by a batted ball was found to have understood and accepted that precise risk.
• 1:12
  Other situations where this defense may arise include recreational activities with known hazards, knowingly riding with an impaired driver, or continuing to ride with a recklessly operating driver whose danger was clear and accepted.
• 1:25
  Critically, none of these situations automatically establishes the defense — the defendant still bears the burden of proving every required element by the greater weight of the evidence.
• 1:35
  Assumption of risk is ordinarily decided by the jury, though a court may resolve the issue when the evidence is so clear that reasonable minds could not differ.
• 1:43
  Virginia even has a specific statutory rule under Va. Code § 8.01-227.19 for winter sports, where whether a circumstance qualifies as an inherent risk is a question of law, while whether the participant assumed it remains a question of fact.
• 1:59
  When a defendant raises assumption of risk, having an experienced attorney review the evidence and assess the strength of each required element can make a critical difference in the outcome of your claim.
• 2:09
  At Fishwick & Associates PLC, lawyer John P. Fishwick Jr. represents injured Virginians in claims where defenses like assumption of risk can directly affect what recovery is available.
• 2:20
  As a seasoned Roanoke trial lawyer and former United States Attorney for the Western District of Virginia, he brings deep courtroom experience to every personal injury case he handles.
• 2:29
  Call Fishwick & Associates PLC at 540, 345, 5890, located at 30 Franklin Rd SW Ste 700, Roanoke, VA 24011, United States, to schedule a consultation and discuss how assumption of risk may affect your Virginia injury claim.