Assumption of risk is defined as a doctrine that a person may in advance relieve another person of the obligation to act towards him or her with due care and may accept the chance of injury.
Assumption of risk, also known as “volenti non fit injuria,” is an affirmative defense in tort law that a defendant can raise in a negligence lawsuit that may prevent a plaintiff from receiving compensation for their injuries. This is because the defendant claims that the plaintiff freely and knowingly assumed the risk of injury, and therefore relieved the defendant of their obligation to act with reasonable care.
Assumption of risk is often used in premises liability litigation where the location in question had “No Trespassing” or “Danger” signs posted. Assumption of risk defense is also used in:
- Activities that required the signing of a waiver
- Extreme sport activities
- Activities that involve dangerous chemicals
- Other activities where risk is obvious
In order for the assumption of risk defense to be used successfully, a defendant must prove the two elements below:
- The plaintiff knew of the risk involved.
- The plaintiff voluntarily accepted the risk, either through express means or it was implied.
Implied Assumption of Risk
In many cases, consent to assume risk is implied although no formal agreement has been made. This is because the plaintiff is aware of the risk and chooses to partake in the activity anyway.
For example, someone who participates in a local hockey league assumes the risk from injuries that can occur typically when playing hockey. It is important to note that while that person assumes the risk of common hockey injuries, they do not assume the risk of injury from overly dangerous behavior or circumstances that are not typical to that activity.
In some states, the implied assumption of risk is not considered a viable affirmative defense.
Express Assumption of Risk
Express assumption of risk is when a participant acknowledges the risk or agreed to it before participating in the dangerous activity. Usually, participants sign a waiver or contract that releases the other party from liability. Many times, a case arises from express assumption of risk is due to the fact that there is a question of whether or not the incident was so grossly negligent or intentional that it exceeds the scope of the waiver that was signed.
What Happens When Assumption of Risk is Proven
If a defendant can successfully prove the affirmative defense of assumption of risk, a plaintiff may not be able to collect damages for medical costs, lost wages, pain and suffering, and other costs related to their injury.