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Using Assumption of the Risk Defense in Product & Premises Liability Claims


As attorneys who work in product liability defense here in Texas, one of the most common defenses we rely on is a doctrine known as the implied assumption of risk. This refers to a plaintiff acquiescing or consenting in an appreciated, known, or obvious risk to their safety. The doctrine can frequently preempt having to litigate, which saves time, effort, and money.

In Florida, courts have limited the application of the doctrine. Instead of outright blocking a lawsuit, they allow for a jury to factor in whether or not the plaintiff assumed any risks when determining whether they were partially at-fault via the doctrine of comparative negligence. Any percentage of fault the plaintiff shares in terms of assuming risk that gave rise to their injuries then reduces their recovery by that percentage.

Types of Assumption of Risk in Florida

There are two types of assumption of the risk: express or implied. In Florida, express assumption of risk applies in two circumstances: when a party assumes that risk via signing a contract (usually a release of liability or waiver) to that effect or when an injury is caused via participating in contact sports. Otherwise, assumption of risk analysis arguably falls under “implied” and must be made by the jury and factored into the comparative fault analysis. In other words, the jury is tasked with determining whether the plaintiff implicitly assumed any of the risks involved with the product and/or activity.

In order to successfully rely on implied assumption of risk, one must argue that the plaintiff knowingly and voluntarily exposed themselves to an obvious danger. This burden falls on the defendant to prove that the plaintiff was aware of the risks and voluntarily took those risks on. Proving that express assumption of risk was involved can serve as a complete bar to recovery if there was an agreement that outright precludes recovery due to an assumption of the risks. Otherwise, the court takes any relevant agreement into account and applies any assumed risks in the form of comparative negligence.

Exceptions for Certain “Hazardous Occupations”

Florida also has a specific statute on assumption of risk when it comes to “hazardous occupations,” namely operating automobiles for public use, blasting, boating, dynamiting, generating and selling electricity, railroading or operating street railways, telephone business.  Employers are not liable for injuries or deaths to their employees, where damages shall not be recovered for injuries to an employee injured in part through their own negligence and in part their the negligence of another employee and the employer is guilty of no such negligence in contributing to the injury.

Contact Our Texas Product Liability Defense Attorneys to Find Out More

If you are facing a product liability claim, you must ensure that you have quality representation. The attorneys of Colvin, Saenz, Rodriguez & Kennamer, L.L.P. are prepared to provide skilled representation in defending against these claims. Contact us today to find out more.




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