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.
Assumption of Risk:
Noun
1. A legal doctrine that refers to the voluntary acceptance of a known risk or danger by an individual, typically in the context of participating in a potentially hazardous activity or situation.
2. In the field of law, it is a defence strategy used by defendants to argue that the plaintiff willingly and knowingly exposed themselves to a certain level of risk, thereby absolving the defendant of liability for any resulting harm or injury.
3. The concept of assumption of risk is based on the principle that individuals have the freedom to make choices and engage in activities that may involve inherent risks, and by doing so, they accept responsibility for any potential harm that may arise.
4. This doctrine is often applied in cases involving sports, recreational activities, and certain professions where individuals are aware of the risks involved and voluntarily decide to participate, sign waivers, or take necessary precautions.
5. However, the assumption of risk defence may not be applicable in situations where the defendant’s actions were grossly negligent, intentionally harmful, or if the plaintiff was not adequately informed about the risks involved.
Example: The defendant successfully argued the assumption of risk defence, stating that the plaintiff willingly participated in the extreme sport and signed a waiver acknowledging the potential dangers, thus relieving the defendant of any liability for the resulting injuries.
n. 1) taking a chance in a potentially dangerous situation. This is a typical affirmative defence 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 legal doctrine that holds individuals responsible for the risks they willingly and knowingly undertake. It is often used as a defence in personal injury cases, where the defendant argues that the plaintiff voluntarily participated in an activity with inherent risks and should bear the consequences of any resulting harm.
To successfully assert assumption of risk, the defendant must demonstrate that the plaintiff had actual knowledge of the risks involved, understood the nature and extent of those risks, and voluntarily chose to proceed despite the risks. The doctrine applies to a wide range of activities, such as sports, recreational activities, and certain professions.
In some jurisdictions, the assumption of risk can be a complete defence, absolving the defendant of any liability. In others, it may only reduce the defendant’s liability or limit the damages that the plaintiff can recover. The application and interpretation of assumption of risk vary among jurisdictions, and courts consider factors such as the nature of the activity, the plaintiff’s age and experience, and any waivers or agreements signed by the parties.
It is important to note that the assumption of risk does not apply in situations where the defendant’s conduct was reckless or intentional or where there was a duty of care owed by the defendant that was breached. Additionally, some jurisdictions have modified or abolished the doctrine altogether, recognising that individuals should not be forced to bear the consequences of risks that are unreasonably dangerous or beyond their control.
Overall, assumption of risk is a legal principle that recognises an individual’s voluntary acceptance of known risks and can impact the outcome of personal injury cases.
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 go 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.
Q: What is the assumption of risk?
A: The assumption of risk is a legal doctrine that states that individuals who voluntarily engage in a potentially dangerous activity are aware of the risks involved and therefore cannot hold others responsible for any resulting injuries or damages.
Q: What are some examples of activities where assumption of risk applies?
A: Examples include participating in extreme sports such as skydiving, bungee jumping, or rock climbing, attending sporting events, signing waivers before participating in recreational activities, or even using certain products or services with known risks.
Q: How does assumption of risk affect personal injury claims?
A: If someone voluntarily assumes the risks associated with an activity, they may be barred from recovering damages in a personal injury lawsuit if they are injured during that activity. The defendant can argue that the plaintiff knew and accepted the risks involved.
Q: Can assumption of risk be used as a defense in all situations?
A: No, assumption of risk is not applicable in all situations. It typically applies to activities where the risks are obvious and the individual willingly participates. However, it may not apply if the defendant’s actions were reckless or if there was a failure to warn about hidden dangers.
Q: Can assumption of risk be waived through a contract or waiver?
A: Yes, individuals can waive their right to sue for injuries or damages by signing a contract or waiver that explicitly states they understand and accept the risks involved in an activity. However, the validity of such waivers may vary depending on the jurisdiction and the specific circumstances.
Q: What if the injured party is a minor or mentally incapacitated?
A: In cases involving minors or mentally incapacitated individuals, the assumption of risk doctrine may not apply. Courts may consider the person’s capacity to understand the risks and make informed decisions, and may hold others responsible for their injuries.
Q: Can assumption of risk be used as a defense by businesses or organizations?
A: Yes, businesses and organizations often use assumption of risk as a defense in personal injury lawsuits. They may argue that the injured party voluntarily participated in the activity, was aware of the risks, and therefore cannot hold them liable for any resulting injuries or damages.
Q: Can assumption of risk be overcome by proving negligence?
A: In some cases, assumption of risk can be overcome if the injured party can prove that the defendant was negligent. If the defendant failed to fulfill their duty of care or intentionally caused harm, the assumption of risk defense may not hold.
Q: Is assumption of
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This glossary post was last updated: 10th April, 2024.
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