The most seasoned automobile accident attorney can tell you that not every case means instant cash for the plaintiff. In California, especially, there are cases in which both the defendant and the plaintiff are found to be at fault or comparatively negligent. Alternatively, a plaintiff can lose an accident case, despite injuries and property damage: that is assumption of risk.

In an auto accident, the person who caused the damage is usually at fault. That is, unless the other driver involved was aware of and ignored the potential risks. For example, borrowing a car that you know is mechanically unsound makes you responsible for the damages that result. You cannot sue the car's owner, because he told you that the car wasn't safe to drive. You may not have a case against the person who hit you either. Why? You ignored the warning and "assumed" the risk of driving the car. That is assumption of risk.

In some cases, assumption of risk and comparative negligence are closely related, but there are clear distinctions. In comparative negligence cases, the defendant may have caused the accident, but the other driver may share the fault. For example, a car travels northward in a very large parking lot and is struck in the side by another car going east. There are no stops or yield signs in that parking lot, so both drivers are comparatively negligent. The eastbound car for failing to stop, and the northbound car for not checking for traffic as it crossed the east-west lane. A jury the proportion of negligence for each party, and the damages are assessed accordingly.

Under assumption of risk, however, the plaintiff is the only person found at fault despite the actions of the defendant. The defense attorney must first prove that the plaintiff not only knew about the risk, but also understood it. Next, the plaintiff must have voluntarily continued the action despite that knowledge. In doing so, the plaintiff accepts the risk–and any resulting consequences.

Car accident attorneys assess each case on several merits, including assumption of risk. For each case, they must know a few things.

  1. What was the level of risk involved in the events leading to the accident?

Did the plaintiff understand that risk?

  1. Did the plaintiff accept the risk? Did you know what the risks were, but decided to drive anyway?
  2. Were there other options available for the plaintiff, other than driving that faulty car or speeding across the parking lot?

Assumption of risk is a defense attorney's dream in a negligence case. However, it is up to the defendant to prove it. Cases that qualify aren't always found in favor of one party or another. In California, for example, a comparative negligence case can arise out of a case with murky details. Therefore, seek a car accident attorney immediately to determine what type of case you may be facing.

Car Accidents and Assumption of Risk