Assumption of Risk

Under the Federal Rules of Civil Procedure, assumption of risk is an affirmative defense in the law of torts that a defendant can raise in a negligence action. Assumption of risk refers to a legal doctrine under which an individual is barred from recovering damages for an injury sustained when he or she voluntarily exposed him or herself to a known danger. Put another way, assumption of risk prohibits a plaintiff from seeking damages on the basis that plaintiff knew of a hazardous condition and willingly exposed him or herself to it. Essentially, the defendant is claiming that the plaintiff knew the risk but took the chance of being injured anyway.

The assumption of risk defense is often raised in premises liability cases where there are “no trespassing” or “enter at your own risk” signs, activities involving dangerous chemicals or substances, waiver and release provision disputes, or extreme sports activities and any other activity where the risk is obvious. 

In order to use the assumption of risk defense successfully, the defendant must demonstrate the following:

  • The plaintiff had actual knowledge of the risk involved; and
  • The plaintiff voluntarily accepted the risk, either expressly through agreement or implied by their words or conduct

The idea is that if a plaintiff has assumed the risk, the defendant does not owe any legal duty to the plaintiff. Thus, the duty element of a negligence claim would not be met, and the plaintiff cannot recover for injuries caused either by risks inherent in the situation or dangers created by the defendant’s negligence. An inherent risk is one that is integral to the activity or a risk that cannot be reduced or minimized without changing the basic nature of the activity. It is important to note that in the context of assumption of risk cases, an employee does not assume the risk of injury arising from the incompetence of a fellow employee.

The defendant bears the burden of proof when it comes to asserting an assumption of risk defense and is responsible for showing that the danger was obvious or apparent, or that the conduct was inherently dangerous. The standard of proof is the preponderance of the evidence, which means that it is more likely than not to be true. Express assumption of risk involves showing the plaintiff explicitly accepted the risk. This can be done through a written agreement between the parties, which is often a signed wavier form signed by the plaintiff when undertaking a dangerous activity, such as skydiving. Issues of express assumption of risk are typically decided by the court as a matter of law. The jury will be presented with facts, circumstances, and relevant documents that they will examine to reach a verdict.

Implied assumption of risk, on the other hand, can be inferred through words and conduct. Specifically, implied assumption of risk exists when a plaintiff undertakes conduct with a full understanding of the possible harm to him or herself and consents to the risk under those circumstances. Implied assumption of risk cases are more difficult for defendants to prove and generally require examining the facts and circumstances surrounding a particular situation.