ASSUMPTION OF RISK

ASSUMPTION OF RISK

A defense, facts offered by a party against whom proceedings have been instituted to diminish a plaintiff ’s CAUSE OF ACTION or defeat recovery to an action in NEGLIGENCE, which entails proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.
Under the federal rules of CIVIL PROCEDURE, assumption of the risk is an AFFIRMATIVE DEFENSE that the defendant in a negligence action must plead and prove. The doctrine of
assumption of risk is also known as volenti non fit injuria.
Situations that encompass assumption of
the risk have been classified in three broad cate-
gories. In its principal sense, assumption of the
risk signifies that the plaintiff, in advance, has
consented to relieve the defendant of an obliga-
tion of conduct toward him or her and to take a
chance of injury from a known risk ensuing
from what the defendant is to do or leave
undone. The consequence is that the defendant
is unburdened of all legal duty to the plaintiff
and, therefore, cannot be held liable in negli-
gence.
A second situation occurs when the plaintiff
voluntarily enters into some relation with the
defendant, knowing that the defendant will not
safeguard the plaintiff against the risk. The
plaintiff can then be viewed as tacitly or implic-
itly consenting to the negligence, as in the case of
riding in a car with knowledge that the steering
apparatus is defective, which relieves the defen-
dant of the duty that would ordinarily exist.
In the third type of situation, the plaintiff,
cognizant of a risk previously created by the
negligence of the defendant, proceeds voluntar-
ily to confront it, as when he or she has been
provided with an article that the plaintiff knows
to be hazardous and continues to use after the
danger has been detected. If this is a voluntary
choice, the plaintiff is deemed to have accepted
the situation and assented to free the defendant
of all obligations.
In all three situations, the plaintiff might be
acting in a reasonable manner and not be negli-
gent in the venture, because the advantages of
his or her conduct outweigh the peril. The plain-
tiff ’s decision might be correct, and he or she
might even act with unusual circumspection
because he or she is cognizant of the danger that
will be encountered. If that is the case, the
defense operates to refute the defendant’s negli-
gence by denying the duty of care that would
invoke this liability, and the plaintiff does not
recover because the defendant’s conduct was not
wrongful toward the plaintiff.
With respect to the second and third situa-
tions, however, the plaintiff ’s conduct in con-
fronting a known risk might be in itself
unreasonable, because the danger is dispropor-
tionate to the advantage the plaintiff is pursu-
ing, as when, with other transportation
available, the individual chooses to ride with an
intoxicated driver. If this occurs, the plaintiff ’s
conduct is a type of contributory negligence, an
act or omission by the plaintiff that constitutes a
deficiency in ordinary care, which concurs with
the defendant’s negligence to comprise the
direct or proximate cause of injury. In such
cases, the defenses of assumption of risk and
contributory negligence overlap.
In this area of intersection, the courts have
held that the defendant can employ either
defense or both. Since ordinarily either is suffi-
cient to bar the action, the defenses have been
distinguished on the theory that assumption of
risk consists of awareness of the peril and intel-
ligent submission to it, while contributory neg-
ligence entails some deviation from the standard
of conduct of a reasonable person, irrespective
of any remonstration or unawareness displayed
by the plaintiff. The two concepts can coexist
when the plaintiff unreasonably decides to incur
the risk or can exist independently of each other.
The distinction, when one exists, is likely to be
one between risks that were in fact known to the
plaintiff and risks that the individual merely
might have discovered by the exercise of ordi-
nary care.
Express Agreement
The parties can enter into a written agree-
ment absolving the defendant from any obliga-
tion of care for the benefit of the plaintiff and
liability for the consequence of conduct that
would otherwise constitute negligence. In the
ordinary case, public policy does not prevent the
parties from contracting in regard to whether
the plaintiff will be responsible for the mainte-
nance of personal safety. A person who enters
into a lease or rents an animal, or enters into a
variety of similar relations entailing free and
open bargaining between the parties, can assent
to relieving the defendant of the obligation to
take precautions and thereby render the defen-