Assumption of Risk

Assumption of risk is a legal doctrine under which a person cannot recover for an injury that he received when he had voluntarily exposed himself to a known danger. Assumption of risk is generally asserted as an affirmative defense by a defendant who is being sued for negligence and it generally bars recovery by the plaintiff because no duty of care was owed by the defendant to the plaintiff as to the known inherent risks.

Example: Chuck Norris and Bruce Lee participated in a martial arts competition. Both knew of the dangers involved in the competition. Both made it to the finals and during the final fight, Chuck Norris severely injured his wrist while attempting to punch Bruce Lee. Chuck Norris later sues Bruce Lee for negligence. In his answer, Bruce Lee asserts the affirmative defense of assumption of the risk. The court will very likely dismiss the case because Chuck Norris voluntarily entered into the competition knowing the inherent dangers.

REFERENCE DESK

“[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., The Law of Torts § 68, at 480-81 (5th ed. 1984).

“This notion of consent is embodied in the doctrine of assumption of risk that operates to bar recovery by an injured party where the nature and extent of the risk were fully appreciated and the risk was voluntarily incurred by that party. Assumption of risk is an affirmative defense in Virginia. It requires the defendant under a primarily subjective test, rather than the objective reasonable person test applicable to contributory negligence, to show what the particular plaintiff in fact sees, knows, understands and appreciates. However, while the degree or scope of the injured participant’s consent is frequently an issue, the operator of a recreational facility is not an insurer of the safety of its invitees.” Nelson v. Great Eastern Resort Management, 265 Va. 98 (2003).

“The affirmative defense of assumption of the risk bars recovery when it is established that a plaintiff, without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not. In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” Eco-Clean, Inc. v. Brown, 324 Ga.App. 523 (2013).

“Primary implied assumption of risk is an affirmative defense that arises where the plaintiff’s conduct indicates that he has implicitly consented to encounter an inherent and known risk, thereby excusing another from a legal duty which would otherwise exist. While a plaintiff assumes the risks that are inherent in the nature of the activity itself, he does not assume risks created by the defendant’s negligence. The defense is based on the theory that a plaintiff will not be heard to complain of a risk which he has encountered voluntarily, or brought upon himself with full knowledge and appreciation of the danger. Assumption of the risk is particularly applicable when the parties are in a contractual relationship with each other. If the doctrine applies, primary assumption of the risk operates as a complete defense to a negligence action because the defendant is said not to owe any duty to the plaintiff.” Edwards v. Lombardi, 2013 IL App (3d) 120518 (2013).