Assumption of risk
Encyclopedia
Assumption of risk is a defense
in the law
of tort
s, which bars a plaintiff
from recovery against a negligent tortfeasor if the defendant
can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury.
What is usually meant by assumption of risk is more precisely termed primary assumption of risk. It occurs when the plaintiff has either expressly or implicitly relieved the defendant of the duty
to mitigate or relieve the risk causing the injury from which the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care
running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part. However, primary assumption of risk is not a blanket exemption from liability for the operators of a dangerous activity. The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.
This defense is commonly used in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving.
Secondary assumption of risk is a rather different doctrine akin in some respects to comparative negligence
. The difference was explained by the Supreme Court of California as follows:
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
in the law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s, which bars a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
from recovery against a negligent tortfeasor if the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury.
What is usually meant by assumption of risk is more precisely termed primary assumption of risk. It occurs when the plaintiff has either expressly or implicitly relieved the defendant of the duty
Duty
Duty is a term that conveys a sense of moral commitment to someone or something. The moral commitment is the sort that results in action and it is not a matter of passive feeling or mere recognition...
to mitigate or relieve the risk causing the injury from which the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care
Duty of care
In tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part. However, primary assumption of risk is not a blanket exemption from liability for the operators of a dangerous activity. The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.
This defense is commonly used in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving.
Secondary assumption of risk is a rather different doctrine akin in some respects to comparative negligence
Comparative negligence
Comparative negligence, or non-absolute contributory negligence outside of the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim based upon the degree to which the plaintiff's own negligence contributed to cause...
. The difference was explained by the Supreme Court of California as follows: