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What Is Assumption of Risk?

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Assumption of risk is a common law defense that may be raised in tort claims such as personal injury. The term refers to situations in which someone is fully aware that what they are doing could result in injury, and they choose to proceed which implies that they are taking on any responsibility associated with that risk onto themselves. This generally prevents that person from being able to recover compensation for any such injuries, even if another party was negligent. As with comparative negligence and contributory negligence, assumption of risk addresses the liability of the injured party.


What is the Assumed Risk Law?

The idea of assumption of risk appears as a valid defense in the Federal Rules of Civil Procedure relating to tort law. It is sometimes also referred to as volenti non fit injuria. If someone files a personal injury claim, the defendant can argue that the plaintiff made an informed decision to partake in a dangerous activity. The law requires the defendant to prove three things in order to claim assumption of risk:

  • The plaintiff knew about the potential risks before acting
  • The plaintiff consented to partaking in the activity
  • Any reasonable person could have predicted the injury occurring

If all three of these factors are proven, the plaintiff will not be able to recover damages from the defendant.


How is the Assumption of Risk Doctrine Applied in California?

Although it is part of federal law, many states have their own way of handling situations where the plaintiff shares responsibility for their injuries. The state of California generally utilizes the idea of comparative negligence rather than assumption of risk in most cases. This has been a growing trend in many states along with the idea of contributory negligence.


Assumption of Risk and Comparative Negligence

Comparative negligence is used to assess the amount of liability for both parties if the plaintiff carries some blame for the accident, either through their own negligence or by assumption of risk. Their share of the fault is calculated as a percentage which is then taken from the amount of compensation they can recover. This means that they could potentially still be compensated even if they share liability.

For example, a plaintiff has $10,000 in damages

  • If they are deemed 10% at fault, they could recover up to $9,000
  • If they are deemed 50% at fault, they could recover up to $5,000
  • If they are deemed 90% at fault, they could recover up to $1,000

A common example of this occurs with motor vehicle accidents where both parties committed traffic violations. Some states use contributory negligence which prohibits someone from recovering damages at all if they are 51% or more at fault. Both comparative and contributory negligence are considered more of a compromise than assumption of risk by providing the injured party with an opportunity to recover something.


What Does the Defendant in a Personal Injury Claim Need to Prove to Use the Assumption of Risk Defense?

When an assumption of risk defense is raised, the burden of proof falls on the defendant. They must prove by preponderance of the evidence that the plaintiff:

  • Was aware of the potential risk
  • Consented to taking that risk

The reason that assumption of risk is a valid defense is that it absolves the defendant of their duty of care to the plaintiff. Without this element, the plaintiff does not have a viable negligence claim, even if the injury was caused by negligence on the part of the defendant. Some exceptions to this are accidents caused by coworker incompetence and injuries caused by risks that could not have reasonably been foreseen and accepted.


What is the Voluntary Assumption of Risk?

Voluntary assumption of risk means that the plaintiff agreed to take on the risk of their own free will. There are some occasions where an assumption of risk defense is not valid because the court determines that it was not voluntary. This can include situations where the plaintiff was coerced or under duress and would not have consented otherwise. If the defendant is forcing the plaintiff to participate, then they retain their duty of care. This is also relevant in situations where the defendant is someone who was in a position of power over the plaintiff and used that power to pressure them. Similarly, if a plaintiff agrees to participate in a dangerous activity due to promises of safety made by the defendant, then the plaintiff has not voluntarily accepted the risk and the duty of care may remain intact.


What is the Difference Between Implied vs Express Assumption of Risk

Generally, there are two ways in which someone can take on assumption of risk. It can either be expressly stated, or implied.

Express assumption of risk means that the person has outright stated that they are aware of the risks involved and agree to take responsibility for any negative outcomes of those risks. This is most often seen as a signed waiver. In order to be valid, the person signing must fully understand the agreement. Disputes over express assumption of risk are generally handled as a matter of contract law.

Implied assumption of risk is generally seen with activities that are inherently dangerous and any reasonable person would be aware of the risks involved. Simply by participating in those activities, the person is implying that they are willing to assume the risks. This is easy enough to prove with things such as extreme sports but can be difficult in more complicated situations.


Primary and Secondary Assumption of Risk

When evaluating liability, there may also be the question of whether there was primary or secondary assumption of risk.

  • Primary Assumption of Risk – The plaintiff gives informed consent to participate in a dangerous activity and absolves the defendant of any duty of care.
  • Secondary Assumption of Risk – The plaintiff gives informed consent to participate in a dangerous activity, but the defendant owes a duty of care to them. This is generally where comparative negligence is utilized.


Examples of Assumption of Risk in Personal Injury Cases

There are many types of personal injury cases where the assumption of risk defense might be raised, including but not limited to:

  • Cases involving posted signage
  • Skydiving accidents
  • Race car driving accidents
  • Contact sports injuries
  • Amusement park accidents
  • Injuries at public gyms


Exceptions to the Assumption of Risk Defense

Informed consent is the basis of the assumption of risk defense. They must understand the risks involved and agree to take responsibility for any consequences of those risks. If there is no informed consent, the affirmative defense is considered invalid. Some examples of this can include:

  • The plaintiff is legally unable to enter a contract because
    • They are a minor
    • They are being coerced
    • They are intoxicated
  • The plaintiff is legally unable to consent to the risk because
    • The contract involves a public policy violation
    • The injury is caused by an intentional tort from the defendant
    • The injury is caused by reckless conduct from the defendant
  • The plaintiff is not fully informed due to
    • Incomplete information provided
    • Risks that are not inherent or obvious
    • Specialized or misleading language
  • The injury was not reasonably foreseeable because
    • The defendant gave a false assurance of safety
    • The injury was not caused by the activity
    • The injury was caused by a freak accident


What Does Assumption of Risk Mean for Your Personal Injury Claim?

If you are filing a personal injury claim against someone, you must be able to prove:

  • They owed you some kind of duty of care
  • They breached that duty of care
  • That breach of duty caused your accident
  • That accident resulted in real damages

All of these elements must be present. If the defendant can prove that any of them are not present, they can prevent you from recovering anything from them. A valid assumption of risk defense can absolve the defendant of their duty of care. In some cases, comparative negligence would apply instead, and you would still be eligible for some level of recovery. It is important to familiarize yourself with the laws that apply to your specific situation so that you are fully informed of your rights and options.


Contact Mesriani Law if You Have Been Injured Due to Someone Else’s Negligence

Navigating a personal injury case can be complicated and stressful, especially if liability is in question or the defendant denies duty of care. Assumption of risk can prevent you from recovering compensation, but many cases may be evaluated through comparative negligence instead. A personal injury lawyer can help you understand how the different elements of your case can affect the possible outcomes. Our firm is dedicated to helping each of our clients through this difficult time and achieve the best possible outcome. If you have been injured due to the negligence of someone who owed you a duty of care, call Mesriani Law Group today for a free consultation.


Assumption of Risk FAQs

What is the meaning of assumption of risk?

Assumption of risk is a common law defense against tort claims. The idea is that the plaintiff waived the duty of care owed to them by the defendant, taking responsibility for the risk of injury involved onto themselves. This prevents the plaintiff from recovering any damages from the defendant for the resulting losses. The defendant must be able to prove that the plaintiff willingly gave consent to participate in the activity while fully aware of the risks and that the consequences of those risks were reasonably foreseeable.

What is an example of assumption of risk?

Mara joins a local gym. As part of the membership paperwork, she signs a waiver stating that she understands that there are risks involved in working out and agrees that the gym is not responsible for any injury she sustains while there. Sam realizes they can get home twice as quickly by passing through a construction site. There is a fence surrounding the property with signs posted stating “No Trespassing” and warnings regarding the various dangers found within. Sam decides to jump over the fence and pass through anyway. Cody buys a ticket to a baseball game. It is a commonly known fact about baseball that the balls will often go into the stands. Cody is reasonably expected to be aware that he may get hit with a baseball while watching the game and has accepted this by entering the stadium.

What is the assumption of risk for employees?

Employees generally fall under the idea of secondary assumption of risk. This means that even though they are aware of the dangers involved in their work, their employer still has some level of duty of care to them. In the state of California, all employers must have worker’s compensation insurance to cover employees injured on the job. There can be some exceptions to this depending on the details of the situation. Worker’s compensation claims have their own rules and regulations, so it is important to educate yourself.

What is the assumption of risk comparative fault?

Assumption of risk is a legal doctrine that places liability on the plaintiff and prevents them from any recovery. Comparative negligence acknowledges that the plaintiff shares some of the liability for their injuries but allows them to still recover some compensation. If the plaintiff is found to be 25% liable, then they can recover up to 75% of their damages.

About the Author
Rodney Mesriani
Rodney Mesriani

Rodney Mesriani is the principal partner of the Los Angeles and Santa Monica based Mesriani Law Group. He specializes in personal injury and employment law while also being an accomplished litigator and trial attorney. Rodney is an aggressive negotiator and a well-known and respected attorney in the areas of practice he specializes in.

He earned his Bachelor of Science degree in Accounting from California State University Northridge before attending Southwestern School of Law where he received his Juris Doctorate. While being an accomplished personal injury and employment lawyer, Rodney Mesriani has made it a point to attend numerous State Sponsored MCLE events and seminars over the years as a law practitioner to be informed of the latest laws and litigation strategies.



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