Assumption of Risk in Texas Personal Injury Cases
When the Insurance Company Tries to Blame You
You have been hurt in an accident that was not your fault, and now the insurance company is calling. At first the adjuster may sound kind and understanding. Then the questions start to change. They ask if you saw a warning sign, if you knew the activity was dangerous, or if you signed a waiver. Before you know it, they are no longer focusing on what their driver, property owner, or business did wrong. They are trying to put the spotlight on you and your choices. They may tell you that by simply showing up, you “assumed the risk” and are not entitled to any compensation.
I am Brad Parker, the attorney you want but hope you never need. At Parker Law Firm Injury Lawyers, we see this all the time. The assumption of risk defense in Texas is a common tool insurance companies use to pressure injured people into giving up or accepting far less than their case may truly be worth. My goal here is to explain, in plain English, what this defense really means, how Texas law treats it, and how an experienced Texas injury lawyer can respond when an insurance company tries to blame you for your own injuries.
What “Assumption of Risk” Means in Texas
In simple terms, the Texas assumption of risk doctrine is a legal idea that focuses on whether you knowingly and voluntarily chose to face a specific danger. Historically, assumption of risk in Texas personal injury cases was treated as a powerful affirmative defense. If a defendant proved you voluntarily faced a known danger, you could be completely barred from recovering anything, even if the defendant was clearly careless. Over time, Texas law changed. Today, most implied assumption of risk arguments are wrapped into the broader system of fault sharing that Texas calls proportionate responsibility.
Implied Assumption of Risk
When people talk about assumption of risk defense Texas law, it helps to separate two ideas. The first is implied assumption of risk. That is when the defendant argues your actions showed that you accepted certain dangers, even if you never signed a document.
For example, they may say you knew the floor was wet or the stairs were broken and chose to use them anyway. Under modern Texas law, these arguments usually go to how much fault is assigned to each person rather than wiping out your claim entirely. A jury might decide a store was largely responsible for a fall but assign you a smaller percentage of fault if you knew about a hazard and walked through it anyway.
Express Assumption of Risk and Waivers
The second idea is express assumption of risk. That is when you sign something, like a waiver, that says you agree to certain dangers. This kind of assumption of risk can still be a strong defense, but only if the waiver is drafted and presented in a way that Texas law permits.
Express assumption of risk comes up often with activities like trampoline parks, gyms, skydiving, youth sports, or amusement parks. Before you can participate, you are handed a clipboard or a tablet and told to sign a release. Later, if you get hurt, the business and their insurer will point to that waiver and say you cannot recover because you accepted the risk.
Even then, Texas law does not automatically side with the business. For a waiver to be enforceable, it generally must clearly say that you are releasing the business from its own negligence, and that language must be noticeable and understandable. If a key release term is hidden in tiny print or buried inside a long block of confusing text, a court may decide it does not provide fair notice. When we review waivers, we look closely at the language, how it was presented, and whether you truly had a fair opportunity to understand it.
How Assumption of Risk Relates to Comparative Fault
Assumption of risk in Texas personal injury cases also interacts closely with comparative fault. Texas uses a modified comparative negligence system that many people call the 51 percent rule. In everyday terms, that means a jury can divide fault between everyone involved in an incident. If you are more than 50 percent responsible for your own injuries, you generally cannot recover damages from the other party. If you are 50 percent or less at fault, you can usually recover, but your damages can be reduced by your percentage of responsibility.
When someone talks about assumption of risk vs comparative negligence Texas law, they are really talking about how your choices and the defendant’s choices are weighed together. For example, if a jury decides a grocery store was 80 percent at fault for failing to clean up a spill and you were 20 percent at fault for not watching where you were walking, you might still recover 80 percent of your total losses. The insurance company’s “you assumed the risk” claim becomes part of the fault analysis, not an automatic bar to your case.
Assumption of Risk in Premises Liability Cases
This same concept carries over into premises claims. If you were hurt because of a dangerous condition on someone else’s property, such as a broken step, poor lighting, or a hidden spill, the owner may argue that the danger was open and obvious and that you assumed it.
These cases often come down to details like lighting, layout, distractions, prior complaints, and how long the danger existed. Even when a condition looks obvious in a photograph taken later, that does not necessarily mean it was obvious in real time to a person who was just trying to shop, work, or walk to their car. A property owner may still have a duty to fix or warn about dangers if they can reasonably expect that people will encounter them.
“Open and Obvious” Does Not Automatically End a Claim
Defense lawyers often treat “open and obvious” like the end of the story. Real cases are usually more fact specific. Warning placement, visibility, lighting, and the way people actually move through a space can matter. The question is often whether the hazard was reasonably apparent at the moment, not whether it looks clear later.
Workplace and Product Cases
Assumption of risk arguments are also common in workplace and product cases.
Workplace Injury Arguments
In a non subscriber workplace case, where the employer does not carry traditional workers’ compensation insurance, we sometimes hear that the employee “knew the job was dangerous” or “should not have taken that shortcut.” Texas law does not say that taking a tough job means you agree to be injured by negligence. Employers still have duties to provide a reasonably safe workplace, to train employees properly, and to avoid putting people in unnecessary danger.
Product Liability Arguments
In product liability matters, manufacturers may claim that a consumer misused a product and therefore assumed the risk. We look at how clear the warnings were, whether the use was truly unreasonable, and what the company knew or should have expected people to do with its product.
What the Defendant Must Prove
To use an assumption of risk defense, the defendant has to prove specific things. It is not enough to argue that you should have known something was dangerous in a general way. They usually must show you had actual, subjective knowledge of a particular danger, that you understood how serious the risk was, and that you voluntarily chose to face it anyway.
If a danger was hidden or warnings were unclear, it becomes difficult for the defense to prove you truly agreed to that risk. For example, you might understand that baseball carries a risk of being hit by a ball. You do not normally agree to the risk that a dugout roof will collapse because the facility failed to maintain it. We help juries see the difference between ordinary risks and preventable risks caused by negligence.
Inherent Risk vs Enhanced Risk
Insurance companies also argue that certain harms are inherent risks of an activity. Some activities do come with obvious dangers, but that does not excuse carelessness. We separate inherent risks from enhanced risks created by negligence. A roller coaster can be fast and thrilling. If it derails because basic maintenance was ignored, that goes well beyond what anyone agrees to when they get on.
Evidence That Helps Defeat Assumption of Risk
Evidence matters when fighting assumption of risk arguments. We look at photos and videos, warning signs, lighting conditions, witness statements, and your background and experience. The defense may try to portray you as more knowledgeable and more in control than you really were. Our job is to show what a reasonable person in your situation actually knew and saw at the time.
Small details often matter, including where a sign was placed, whether it was visible, whether lighting made a hazard hard to notice, and whether staff knew about the danger and failed to address it.
Timing and Deadlines in Texas Injury Cases
There are deadlines to file a lawsuit, known as statutes of limitations. The general statute of limitations for Texas personal injury claims is often around two years from the date of the incident, but there are exceptions and special rules in some situations. Because deadlines can vary depending on the facts, it is best to talk with a Texas injury lawyer as soon as you can.
Insurance companies know time is not on your side. They may drag out negotiations, ask for repeated statements, or insist you assumed the risk while the clock keeps ticking. Meeting with an attorney early helps protect your right to file if negotiations break down.
How Assumption of Risk Can Reduce Damages
Assumption of risk affects how damages are calculated when you prove your claim. If a jury finds the defendant was negligent but believes you shared responsibility by facing a known risk, it can reduce your damages in proportion to your share of fault.
For example, if a jury believes your total losses are $100,000 but assigns you 30 percent of the fault, your recovery could be reduced to $70,000. If the jury decides you are more than 50 percent responsible, you may not recover at all. This is why it is critical to push back against unfair attempts to paint you as the main cause of your own injuries.
Steps You Can Take After an Injury
If you are physically able, photograph the area where you were hurt, the condition that caused the incident, and any warning signs that were present or missing. Capture lighting or weather conditions if they played a role. If your injury happened at a recreational facility, keep copies of your ticket, receipt, and any waiver or release you were asked to sign. Do not assume the business will preserve these documents or keep the scene unchanged.
Be Careful With Recorded Statements
Adjusters often ask for recorded statements early. Questions that sound harmless can later be used to support an assumption of risk argument. If you are unsure, get legal advice before giving a recorded statement.
Why Legal Help Matters
Your next step should usually be to talk with a board certified personal injury trial lawyer who practices in Texas. At Parker Law Firm Injury Lawyers, our work is focused on helping people seriously hurt in car and truck crashes, falls, unsafe property incidents, and other negligence cases. We are board certified in personal injury trial law by the Texas Board of Legal Specialization, a distinction only a small percentage of Texas attorneys hold.
That experience matters when the defense raises assumption of risk. We know how to challenge confusing waivers, how to question facility managers and safety officers, and how to present a clear picture of what happened. We treat you like family, which means we are straight with you about the strengths and challenges in your case, and we fight tirelessly for you within the bounds of the law.
Do Not Accept the Insurance Company’s Version of the Law
Insurance companies use assumption of risk language to discourage claims. They may say your case is worth nothing because you signed a waiver or chose to participate in an activity. You do not have to accept their version of the law or the facts.
Talking with a lawyer does not mean you are being greedy. It means you are trying to understand your rights and make informed decisions. At our firm, there is no fee unless we win, so there is no upfront cost to have us review your situation. We can take over communications so you are not pressured into saying something that could later be twisted into an assumption of risk argument.
If you are worried that a waiver you signed or a decision you made might have ruined your claim, you are not alone. Often, once we investigate, the picture looks very different from the one painted by the insurance adjuster. Texas law recognizes both personal responsibility and the duty others have to act reasonably. Our job is to make sure your story is heard fully and fairly.
Legal Disclaimer
This information is for general purposes only and does not create an attorney client relationship. It is not a substitute for advice about your specific facts from a licensed Texas attorney. If an insurance company is telling you that you have no claim because you “knew the risk,” talk with a qualified lawyer as soon as you can so you can understand your options and protect your rights.
