After a crash, it isn’t unusual for an insurance adjuster to suggest that you share the blame simply because of a choice you made. Maybe you rode with a friend who’d been drinking, or you weren’t wearing your seat belt. Maybe you drove through standing water after a heavy storm.
The argument usually sounds something like “you knew the risk, so you can’t complain about the result.” That idea is called assumption of risk, and in Louisiana it works very differently than most people expect.
If an insurer is using this argument against you, a Lafayette car accident lawyer at Anderson Blanda & Saltzman can help you understand where you really stand.
What the Term Traditionally Means
In many states, assumption of risk has long been a separate defense. The idea is that if you knowingly and voluntarily accept a known danger, you can’t recover damages when that danger causes you harm. In some places, it can wipe out a claim entirely, no matter how careless the other party was.
Louisiana Took a Different Path
Louisiana doesn’t treat assumption of risk as a standalone defense in ordinary negligence cases. In 1988, the Louisiana Supreme Court decided in Murray v. Ramada Inns that the concept should be absorbed into the state’s comparative fault system. Instead of asking whether you assumed a risk, a court now asks how much of the fault, if any, belongs to you.
Louisiana law also limits the use of advance waivers. Under La. C.C. Art. 2004, a clause that tries to excuse someone in advance from liability for intentionally causing physical injury is generally unenforceable. That means a signed form or verbal warning usually won’t let a negligent driver off the hook.
Why the Idea Still Comes Up
Even though assumption of risk isn’t its own defense here, insurers still use the same reasoning. They simply call it comparative fault. The argument is that your decision contributed to your injuries, so your compensation should be reduced.
Under La. C.C. Art. 2323, a person found 51% or more at fault for their own injuries can’t recover any compensation for their damages. If you are found to be less than 51% at fault, you can recover damages reduced by any percentage of fault assigned to you.
Situations Where Insurers Raise This Argument
Some of the most common examples in car accident cases involve riding as a passenger with a driver you knew was drunk or high. Another is getting into a car with obviously bald tires or broken headlights. So is choosing to drive through a flooded road, a real concern in South Louisiana after heavy rain. Riding in the bed of a pickup, or joining in a street race, tends to draw the same response.
Seat belts come up constantly. For many years, Louisiana law kept juries from hearing that an injured person wasn’t buckled up. That rule was repealed effective January 1, 2021. Today, the defense can argue that your failure to wear a seat belt under La. R.S. 32:295.1 made your injuries worse.
The Insurer Still Has to Prove It
An adjuster’s suggestion that you “took the risk” isn’t proof. The defense generally has to show that your choice actually contributed to your injuries and how much it contributed.
For example, a missing seat belt doesn’t automatically explain every injury. A broken ankle from a side impact may have happened with or without a belt. The same goes for the passenger case. The question isn’t just whether the driver had been drinking, but what you knew, what you could reasonably have known, and whether you had a realistic alternative. A passenger who had no way home and didn’t realize how impaired the driver was stands in a very different position from someone who handed over the keys.
Talk With Anderson Blanda & Saltzman
A choice you made before a crash doesn’t automatically defeat your claim. Our personal injury attorneys in Lafayette have taken more than 60 cases before juries and know how to push back when insurers try to shift the blame.
If you were injured in a car accident caused by someone else’s negligence or wrongdoing, we want to help. Call us today at (337) 233-3366 or visit our contact page to schedule a free consultation.