Business, Legal & Accounting Glossary
An assumption of risk is the risk assumed when engaging in inherently dangerous or risky actions. Claimants who engage in such activities may legally forfeit their right to compensation from a potential injury. Assumption of risk is an available defence for certain types of personal injury claims. To prove the assumption of risk several requirements must be met:
The plaintiff had actual knowledge of the risk involved in the conduct or activity;
The plaintiff must have the capacity to understand any type of written agreement or contract waiving liability. For instance, a mentally ill patient cannot waive their rights to sue their doctor.
The plaintiff voluntarily accepted the risk, either expressly through agreement or implied by their words and conduct. Consider, however, the plaintiff could not have been forced to participate in the activity.
Express assumption of risk usually takes the form of a written agreement between the plaintiff and defendant (i.e. a skydiving waiver of liability). Assumption of risk can also be assumed if a plaintiff is engaged in certain sporting activities, is entering a hazardous area, or participating in an activity where there is an inherent and obvious danger.
n. 1) taking a chance in a potentially dangerous situation. This is a typical affirmative defense in a negligence case, in which the defendant claims that the situation (taking a ski-lift, climbing a steep cliff, riding in an old crowded car, working on the girders of a skyscraper) was so inherently or obviously hazardous that the injured plaintiff should have known there was danger and took the chance that he/she could be injured. 2) the act of contracting to take over the risk, such as buying the right to a shipment and accepting the danger that it could be damaged or prove unprofitable.
Assumption of risk is a defence in the law of torts, 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 participated in.
What is usually meant by an assumption of risk is more precisely termed the primary assumption of risk. It occurs when the plaintiff has either expressly or impliedly 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 on an assumption of risk, the duty of care passed to the plaintiff, and that without duty, there can be no negligence.
However, the 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 the primary assumption of risk to apply.
This defence 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.
This can also be called “volenti non fit injuria”. – Murphy v. Steeplechase Amusement Co. “The Flopper” 166 N.E. 173 (N.Y. 1929)
The Flopper is a flagship case in American tort law exemplifying the defence of assumption of risk. The plaintiff was injured on an amusement park ride (The Flopper) at a park on Coney Island, New York that was owned and operated by Steeplechase Amusement Co. The ride consisted of a belt running upward on an inclined plane on which riders sat or stood. Since the movement of the belt caused riders to lose their balance, the sides of the belt were padded.
The plaintiff watched the ride for a while and witnessed some riders falling before deciding to on the ride himself. When he boarded the ride, he said that he felt a sudden jerk which caused him to fall and injure himself. Benjamin Cardozo ruled that the risks in the ride were apparent and in deciding to board the ride, he was assuming the risk. Steeplechase Amusement Co. was found not liable for the injury.
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This glossary post was last updated: 26th April, 2020 | 16 Views.