Assumption of Risk
Assumption of Risk
Assumption of risk provides a defense to a claim of negligence in cases where the plaintiff knowingly exposes himself or herself to danger and assumes responsibility for any harm. It is based on the premises that an individual is responsible for the consequences of choice (Tort Law for Paralegals, 2010).
What is usually meant by assumption of risk is more precisely termed primary assumption of risk. It occurs when the plaintiff has either expressly or implicitly 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 upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part. However, 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 primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.
This defense is commonly used in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving. The Assumption of risk doctrine is applicable where a hazardous risk is involved. Thus, the court looks at the time, place, and person and the relationship of the parties when deciding whether something is dangerous. The nature of the assumption of risk defense is an absolute defense when public policy orders that the defendant does not owe a duty of care to the plaintiff. Therefore, the court analyses whether or not there was a duty to the plaintiff by the defendant. Additionally, the burden of proof is on the defendant to show the plaintiff assumed the risk. I found a few different codes...
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