Alyssa Lane
The assumption of risk is a legal doctrine that can be used as a defence in personal injury cases. It suggests that a plaintiff who knowingly and willingly exposes themselves to danger cannot hold another party liable for any resulting injuries. This principle is based on the idea that the plaintiff has voluntarily accepted the risk of injury and absolved the defendant of any liability. The assumption of risk can be either express or implied. Express assumption of risk is typically achieved through a signed waiver, while implied assumption of risk is inferred from the plaintiff's conduct and the circumstances surrounding the injury. This defence is commonly used in cases involving risky recreational activities, such as sports, skydiving, or rock climbing.
| Characteristics | Values |
|---|---|
| Type | Express or Implied |
| Express Assumption of Risk | Explicit agreement by the plaintiff to accept the risks involved in an activity, typically through a signed waiver |
| Implied Assumption of Risk | Inferred from the plaintiff's conduct and circumstances surrounding the injury; includes primary and secondary assumption of risk |
| Primary Assumption of Risk | Defendant has no duty of care to the plaintiff and cannot be found negligent; plaintiff accepts the risk, knowing others are not responsible for their safety |
| Secondary Assumption of Risk | Defendant has a duty of care to the plaintiff but the plaintiff proceeds with an activity despite knowing the risks |
| Application | Personal injury lawsuits, tort cases, negligence claims |
| Effect | May reduce or bar plaintiff's ability to recover damages |
| Exceptions | Minors, emergency medical services, mandatory public education, intentional acts |
| Defences | Expert legal counsel, loopholes in waivers, duty of care |
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What You'll Learn
Express assumption of risk
When signing a waiver, the plaintiff expressly acknowledges that they are aware of the potential hazards and are accepting the risk of those actions. For example, a person who signs a waiver before using a gym acknowledges that they understand the risk of injury from using gym equipment. Even if an individual signs an express assumption of risk agreement, they may still be able to sue under certain circumstances. For instance, if the risk that caused the injury was not explicitly stated in the waiver, or if the defendant acted recklessly or intentionally caused harm, the waiver may not hold up in court.
Courts may refuse to enforce a general liability waiver if it fails to inform the signer of the specific risk that caused the injury. Additionally, express assumption of risk does not absolve a defendant of liability for reckless conduct, only negligent conduct. This means that even if a plaintiff has signed a waiver, the defendant can still be held liable if their actions are deemed to be outside the scope of the agreed-upon risks.
In summary, express assumption of risk involves a direct and explicit agreement by the plaintiff to accept the risks of an activity, usually through a signed waiver. While it can provide protection from liability for negligent conduct, it does not cover reckless or intentional acts, and it is important to ensure that the agreement is valid and enforceable.
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Implied assumption of risk
In other words, implied assumption of risk occurs when the plaintiff's conduct demonstrates that they knew of the risk and proceeded anyway. For example, a shopper who sees a spill on the floor at the entrance to a store but decides to walk across the slippery area to enter the store anyway is engaging in secondary implied assumption of risk.
There are two subcategories of implied assumption of risk: primary implied assumption of risk and secondary implied assumption of risk. Under primary implied assumption of risk, the defendant had no duty of due care to the plaintiff at all, and, as such, they cannot be found negligent. The typical example of primary assumption of risk is participating in sporting events. For instance, a spectator who gets hit by a foul ball at a baseball game cannot bring a claim for their injuries, because they knew it was a possibility when they chose to attend the game.
Secondary implied assumption of risk occurs when the defendant has a duty of care to the plaintiff, and they breach that duty, creating a risk. The plaintiff, aware of this risk, still chooses to proceed. In these scenarios, secondary assumption of risk will be evaluated as if it were comparative negligence. In "pure" comparative negligence states, a plaintiff can recover damages even if they are 99% at fault, although their award will be reduced by their percentage of fault. In "modified" comparative negligence states, a plaintiff can only recover damages if their fault is below a certain threshold, typically 50% or 51%.
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Primary assumption of risk
In personal injury law, the assumption of risk doctrine is a critical defence that can potentially prevent or reduce a plaintiff's ability to recover damages. This principle is based on the idea that an individual who knowingly and voluntarily exposes themselves to a known danger cannot hold another party liable for any resulting injuries.
Express assumption of risk, typically achieved through a signed waiver, is a direct and explicit agreement by the plaintiff to accept the risks involved in an activity. For example, a gym may require its members to sign a liability waiver stating that the gym is not legally responsible for any injuries. However, waivers are not always binding, and courts may not enforce them if they are poorly worded, cover risks beyond the scope, or are against public policy.
Implied assumption of risk occurs when the plaintiff's conduct demonstrates that they knew of the risk but proceeded anyway. It is inferred from the plaintiff's actions and the circumstances surrounding the injury. For example, an employer supplies a defective machine, and the employee uses it anyway, knowing it is defective. If the machine causes injury, the employer may have a defence based on primary assumption of risk, as they owe no legal duty to protect the employee from that particular risk.
In summary, primary assumption of risk applies when the defendant has no duty of care to the plaintiff, and thus cannot be found negligent. This is often the case with inherently dangerous activities, where the plaintiff voluntarily accepts the risk. Express and implied assumptions of risk are forms of primary assumption of risk, depending on whether the acceptance of risk is explicit or inferred from conduct.
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Secondary assumption of risk
For example, an employer may have a secondary assumption of risk defence if a piece of machinery they provided causes injury to an employee. In this case, the employer had a continuing duty of reasonable care to the employee, but the employee used the machinery anyway, knowing it was defective.
In comparative negligence jurisdictions, secondary assumption of risk is applied as a factor that the jury can consider in apportioning fault, rather than a complete defence. It may reduce the amount of compensation the plaintiff receives based on their share of fault. For instance, if an individual participates in an activity without proper training or disregards safety warnings, they may be found partially responsible for their injuries.
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Comparative negligence
Under the doctrine of comparative negligence, the court assigns a percentage of fault to both the plaintiff and the defendant. This is done by evaluating the extent to which the plaintiff knowingly and voluntarily exposed themselves to a known danger. This evaluation is crucial in determining the liability of the defendant and the compensation owed to the plaintiff.
There are two types of comparative negligence: pure and modified. In pure comparative negligence, a plaintiff can recover damages even if they are 99% at fault, but their award will be reduced by their percentage of fault. On the other hand, in modified comparative negligence, a plaintiff can only recover damages if their fault is below a certain threshold, typically 50% or 51%.
The assumption of risk is a common law doctrine that refers to a plaintiff's inability to recover damages for the tortious actions of a negligent party when the plaintiff voluntarily accepted the risk of those actions. Assumption of risk can be express or implied. Express assumption of risk is typically achieved through a signed waiver, in which the plaintiff agrees to accept the risks involved in an activity. Implied assumption of risk, on the other hand, is inferred from the plaintiff's conduct and the circumstances surrounding the injury.
In many jurisdictions, the doctrine of assumption of risk has been merged into the doctrine of comparative negligence due to their substantial overlap. For example, the Supreme Court of Kansas eliminated the assumption of risk defence entirely in favour of the legislative comparative negligence standard. This change significantly altered the landscape of the assumption of risk defence, as it introduced a more nuanced approach to determining fault and liability.
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Frequently asked questions
Assumption of risk is a legal doctrine that refers to a plaintiff’s inability to recover damages for the tortious actions of a negligent party when the plaintiff voluntarily accepted the risk of those actions.
Express assumption of risk occurs when the plaintiff explicitly accepts the risk, whether by oral or written agreement, such as a signed waiver or contract.
Implied assumption of risk is inferred from the plaintiff's conduct and the circumstances surrounding the injury. It does not require a written or oral agreement.
Primary assumption of risk involves any situation in which someone engages in a dangerous activity when they know that no one else is responsible for their safety.
Secondary assumption of risk occurs when a defendant has a duty of care to the plaintiff but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty.
