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Defenses to Tort Liability: Assumption of Risk

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What Is "Assumption of Risk" in a Personal Injury Claim?

Assumption of Risk is a type of defense available for most personal injury and negligence lawsuits. Assumption of risk arises when a plaintiff knowingly and voluntarily assumes a risk of harm connected with the negligence of the defendant. If the plaintiff has assumed such a risk, they cannot recover damages for any harm resulting from the defendant’s conduct, even if the defendant was negligent or reckless. 

In order to prove the defense of assumption of risk, the defendant must show that:

  • The plaintiff had actual knowledge of the risk involved in the conduct or activity
  • The plaintiff voluntary accepted the risk, either expressly through agreement or implied by their words and conduct (i.e., they cannot be forced to perform the activity)

Also, it is usually necessary to prove that the danger was obvious, or that the nature of the conduct was inherently dangerous.  Assumption of risk is a common defense to negligence, along with contributory negligence and comparative negligence

Can I Still Sue a Defendant for My Injuries If I Signed a Contract Stating I Wouldn’t Sue Them?

Generally not, as the purpose of assumption of the risk is to prevent defendant liability, if not outright deter an injured party from bringing a lawsuit. However, express assumption of risk is a defense based in contract law, and as such, as a few critical weak points:

  • The contract cannot be in violation of public policy. Public policy can be defined by public necessity or accessibility. Emergency medical care and mandatory education are usually areas of public policy.
  • The contract cannot cover intentional acts. If a racecar track owner intentionally leaves a wheel in the road with the intention of hurting the plaintiff, the assumption defense will not work. 
  • Plaintiff did not have the capacity to understand the contract. A plaintiff who is barely conscious or mentally ill cannot sign a contract waiving the right to sue a doctor or hospital. Likewise, a minor may not have the ability to waiver the right to sue when skydiving (this will depend on the minor’s exact age).

What Is “Express” Assumption of Risk? 

One of the elements for proving assumption of risk is that the plaintiff must accept the risk involved. Acceptance of the risk can either be “Express” (i.e. an agreement between the parties), or “Implied” (i.e., determined by the plaintiff’s words or conduct).

Express assumption of risk usually takes the form of a written agreement between the plaintiff and defendant. An example of this is where the plaintiff engages in an ultrahazardous activity like skydiving. They may be required to sign a waiver stating that they are assuming all the risks associated with skydiving, and are will not pursue litigation if injured. 

What’s “Implied” Assumption of Risk?

In comparison, implied assumption of risk doesn’t involve a written agreement. Instead, it may take the form of oral statements or conduct by the plaintiff. For example, suppose a property owner told the plaintiff, “That part of my yard is filled with sinkholes”. 

Suppose then that the plaintiff says, “Sure”, nods his head, then proceeds to walk in the area indicated and falls into a sinkhole. Here, the plaintiff’s knowledge of the risk may be implied from their verbal response and head nod. Implied assumption of risk usually has to do with the plaintiff’s response after they receive information about the risk.    

Thus, when proving assumption of risk, it is necessary to examine all the facts surrounding the injury in order to determine whether the plaintiff had express or implied acceptance of the risk. 

What Statements or Conduct Can’t the Plaintiff Waive Through “Implied” Assumption of Risk?

Although implied assumption can be quite broad as long as the assumption is voluntary and understood by all parties, there are some forms of conduct that cannot be waivered. Such conduct includes:

  • Criminal behavior against the plaintiff.
  • Voluntary behavior which is actually involuntary due to the circumstances. Accepting a ride with a drunk driver can be held involuntary if the weather is terrible and the plaintiff is far from home.
  • Behavior which is completely unforeseeable. A plaintiff may foresee and assume the risk of getting hit by a baseball when sitting in the front row of a baseball stadium during the game. Plaintiff may not foresee and assume the risk of a deadly shooting while watching the latest batman movie in a theater.

What Types of Cases Commonly Involve Assumption of Risk?

One example of assumption of risk is where the plaintiff entered an area littered with toxic materials.  Suppose the plaintiff had read signs that were posted around the area marked, “Danger- hazardous materials- enter at your own risk”. If the plaintiff still entered the area even after reading the signs (i.e., they had knowledge of the risk), they might not be able to recover damages from the property owner, since they assumed the risk of injury. 

Assumption of risk is commonly raised as a defense in cases involving:

  • Activities where the danger is obvious or nature of the activity is inherently dangerous (cannot be performed without some risk of injury)
  • Premises Liability (“Enter at your own risk” sign will usually suffice)
  • Sports activities, especially contact sports
  • Ultrahazardous Activities” and Extreme Sports activities like skydiving and paragliding
  • Waivers and Release Clause disputes- these documents often include language addressing assumption of risk

Do I Need a Lawyer for Help with an Assumption of Risk Defense?

Assumption of risk will prevent a plaintiff from recovering damages for their injuries. Thus, it is important to contact a qualified personal injury lawyer if you have a dispute involving assumption of risk. Your attorney can help address any questions you may have and can also represent you in court during a private civil lawsuit. 

Photo of page author Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

Last Modified: 02-20-2018 09:12 PM PST

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