ASSUMPTION OF THE RISK
assumption of the risk.Torts. 1. The act or an instance of a prospective plaintiff’s taking on the
risk of loss, injury, or damage <the skydiver’s assumption of the risk>. — Also termed assumption
of risk. [Cases: Negligence 550. C.J.S. Negligence §§ 360–361.]
“[Assumption of risk] has been a subject of much controversy, and has been surrounded by
much confusion, because ‘assumption of risk’ has been used by the courts in several different
senses, which traditionally have been lumped together under the one name, often without realizing
that any differences exist. There are even courts which have limited the use of the term
‘assumption of risk’ to cases in which the parties stand in the relation of master and servant, or at
least some other contractual relation; but they have been compelled to invent other names for
other cases, such as ‘incurred risk,’ or ‘volenti non fit injuria.’ This appears to be largely a
distinction without a difference; and most courts have made general use of the one term…. In its
most basic sense, assumption of risk means that the plaintiff, in advance, has given his express
consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of
injury from a known risk arising from what the defendant is to do or leave undone.” W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 480–81 (5th ed. 1984).
- The principle that one who takes on the risk of loss, injury, or damage cannot maintain an
action against a party that causes the loss, injury, or damage <assumption of the risk was not a
valid defense>. • Assumption of the risk was originally an affirmative defense, but in most
jurisdictions it has now been wholly or largely subsumed by the doctrines of contributory or
comparative negligence. The risk assumed by the person was often termed an in-curred risk.
implied assumption of the risk.An assumption based on the plaintiff’s conduct that seems to
consent to relieve another of liability for negligence. • For this defense to apply, the plaintiff’s
conduct must suggest (1) open consent to the risk, (2) voluntary participation in the activity, and (3)
full understanding of the danger. See VOLENTI NON FIT INJURIA.
primary assumption of the risk.A legal conclusion that the defendant was not negligent
because the defendant either did not owe a duty of care to the injured party or did not breach any
duty owed. • Courts decide questions of duty through policy judgments, which include the relative
balance between risks and utilities.
“Primary assumption of risk occurs when the plaintiff voluntarily participates in an activity
involving certain inherent risks and encounters one of the inherent risks; the defense is a complete
bar to recovery because there is no duty of care to protect another from the risks inherent in a
voluntary activity.” 4 Ann Taylor Schwing, Cali-fornia Affirmative Defenses 2d § 48:24, at 59
(1996).
“Primary assumption of risk is sometimes viewed as a misnomer. This concept is frequently
described as a no-duty rule because the plaintiff, by engaging in a known and potentially risky
activity, has relieved the defendant of the duty of care normally owed to the plaintiff. Under the
primary-assumption-of-risk/no-duty doctrine, ‘there [would be] no liability because the defendant
did not breach a duty of care to the plaintiff.’ [Kenneth S. Abraham, The Forms and Functions of
Tort Law 155 (1997).] Traditionally, the no-duty rule completely bars a plaintiff’s recovery. Courts
limit the use of primary assumption of risk in comparative-negligence jurisdictions because of the
harshness of this rule. Recently, some comparative-negligence jurisdictions have started to review
primary assumption-of-risk claims within the framework of their comparative-fault system,
refusing to automatically bar the plaintiff’s entire recovery.” Luke Ellis, Note, Talking About My
Generation: Assumption of Risk and the Rights of Injured Concert Fans in the Twenty-First
Century, 80 Texas L. Rev. 607, 618 (2002).
secondary assumption of risk. 1. The act or an instance of voluntarily encountering a known
unreasonable risk that is out of proportion to any advantage gained. • With secondary assumption
of the risk, the fact-finder con-siders the reasonableness of the plaintiff’s conduct in the particular
case, balancing the risks and utilities under the circumstances. 2. An affirmative defense to an
established breach of a duty, based on a claim that the plaintiff acted unreasonably in encountering
a known risk. See contributory negligence under NEGLIGENCE.
voluntary assumption of the risk.An intentional and unreasonable exposure of oneself to
danger created by another’s negligence, when one knows or has reason to know of the danger.[Blacks Law 8th]