Consent plays an important role in many personal injury cases. In general, consent means a person voluntarily agrees to a particular action or activity. When someone consents to certain conduct, it can affect whether another party may be held legally responsible for resulting injuries.
However, consent is not always communicated in the same way. In personal injury law, courts often distinguish between express consent and implied consent.
What Is Express Consent?
Express consent occurs when someone clearly and directly agrees to something, either verbally or in writing. This type of consent is explicit and leaves little room for misunderstanding.
Examples of express consent may include:
- Signing a liability waiver before participating in an activity
- Verbally agreeing to physical contact during a sporting event
- Signing a participation agreement for a recreational activity
In personal injury cases, defendants sometimes rely on express consent to argue that the injured person knowingly accepted certain risks associated with a dangerous activity. For example, someone who signs a waiver before participating in a zipline course may have acknowledged the ordinary risks involved in that activity.
However, express consent does not automatically prevent an injury claim. Liability waivers and consent agreements may not protect a business or individual from gross negligence or conduct outside the scope of the agreement.
What Is Implied Consent?
Implied consent is inferred from a person’s actions, behavior, or the surrounding circumstances. In other words, a person’s conduct may suggest that they agreed to certain ordinary risks or interactions.
Examples of implied consent may include:
- Participating in a contact sport where physical contact is expected
- Entering a crowded event where minor incidental contact is unavoidable
- Engaging in recreational activities that naturally involve certain risks
For example, a person playing in a basketball game generally implicitly consents to ordinary physical contact that occurs during normal gameplay. That does not mean players consent to intentional violence or reckless misconduct outside the normal scope of the sport.
Similarly, someone attending a baseball game may accept the ordinary risk of foul balls entering spectator areas.
How Consent Relates To Personal Injury Claims
Consent can be a defense in personal injury litigation. A defendant may argue that the injured person voluntarily accepted certain risks and therefore cannot hold others liable for resulting injuries.
These issues commonly arise in cases involving:
- Recreational activities
- Sporting events
- Gyms and fitness facilities
- Amusement attractions
- Property access disputes
- Physical altercations
Consent is closely related to the legal concept of assumption of risk. This doctrine may apply when a person voluntarily participates in an activity while understanding that certain risks are involved.
However, assumption of risk does not excuse every dangerous condition or negligent act. In Arizona, businesses and property owners still generally have a duty to maintain reasonably safe conditions and avoid unnecessary hazards under premises liability law.
Why Consent Matters in Personal Injury Cases
Consent-related defenses can significantly affect personal injury claims. Insurance companies and defendants may try to argue that the injured person “knew the risks” or voluntarily accepted dangerous conditions. These arguments can limit their liability for an accident, but not for negligent or reckless conduct that went beyond what was reasonably anticipated.
An experienced personal injury attorney can analyze how consent and assumption of risk may apply to a particular case and challenge unfair attempts to avoid liability.
Contact Feller & Wendt, LLC To Schedule a Free Consultation With a Phoenix Personal Injury Attorney
Even when someone agreed to participate in an activity in Arizona, that does not necessarily eliminate the right to pursue compensation after a serious injury. If you were injured and another party claims you consented to the risk, you should speak with an experienced personal injury lawyer for help understanding your rights and evaluating your legal options.
Contact Feller & Wendt, LLC at 480-702-2277 to schedule a free consultation with a personal injury lawyer in Phoenix to learn more.
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