Assumption of the Risk

Assumption of the risk is an affirmative defense that the defendant can allege in order to defeat a plaintiff’s recovery in a negligence lawsuit. The defendant can claim that the plaintiff assumed the risk when the plaintiff consented to a known risk.

In order to prove “assumption of the risk,” the defendant must show that the plaintiff knew there was a risk of injury or other harm, and voluntarily accepted the risk.

There are two types of assumption of the risk: express and implied.

Express Assumption of the Risk

Express assumption of the risk occurs when the plaintiff agrees in advance that the defendant will not be liable for consequences of negligent conduct.

Express assumption of the risk can occur when the plaintiff signs a contract that includes a clause stating that the plaintiff agrees to waive the defendant’s liability for inherent risks. When a defendant alleges express assumption of the risk (i.e. the plaintiff signed a contract) a court must determine whether the scope of the release covers the claim being asserted by the injured plaintiff.

There are a few situations where a defendant cannot use express assumption of the risk as a defense including:

  • Capacity – The plaintiff lacks capacity to understand the contract.
    • This applies to individuals under the age of eighteen and individuals with mental illness
      • Example:   Freddie is sixteen years old. He decides to take his car to Joe’s Auto Shop. Joe asks Freddie to sign a release which includes an express assumption of the risk clause that states that Joe is not responsible if the breaks fail while Freddie is driving. Freddie signs the release when he picks up his car. On his way to school the next day the breaks fail and Freddie gets into a car accident.
        • In this situation Joe will not be able to defend against Freddie’s negligence claim based on expressed assumption of the risk because Freddie lacked capacity to sign the contract.
  • Violation of Public Policy
    • A defendant will not be able to use express assumption of the risk if the court determines that a contract violates public policy.
  • Contract Covering Intentional Torts or Reckless Conduct
    • Plaintiff’s cannot consent to release of liability from intentional torts or reckless conduct.
    • Example:  Maddison purchases a ticket from the Yellow Bus Company to ride from Dallas to El Paso.  When she purchases the ticket, Maddison signs a general release that states that the owner of Yellow Bus Company will not be liable for any actions of her employees.
      • Nora, the driver off the bus, gets frustrated when Maddison refuses to sit down while the bus is moving.  Nora approaches Maddison and hits her on the head.  Express assumption of the risk cannot be used as a defense because Nora committed an intentional tort.

You should talk to a lawyer before you sign a contract releasing a potential defendant from liability or even in the event you signed a contract and now have been injured.  An experienced personal injury lawyer will know if your situation falls under an exception to the express assumption of the risk defense.

Implied Assumption of the Risk

Implied assumption of the risk occurs when the plaintiff accepts a risk by simply participating in the activity. There are two types of implied assumption of the risk:

  1. Primary Assumption of the Risk

    • Primary assumption of the risk occurs when the plaintiff confronts an inherent or known risk of an activity.
      • Example: If a NASCAR driver gets into a car accident while participating in a race he will likely not be able to recover because he assumed the risk of an accident.
  2. Secondary Assumption of the Risk

    • Secondary assumption of the risk occurs when the plaintiff is told about a specific risk and voluntarily engages in the activity in spite of the risk.
      • Example: Kendra and Mike are at a party. They both have had a lot to drink. Mike tells Kenrda that he probably should not drive, and then he offers her a ride home. Kendra accepts the ride. Mike loses control of the wheel and Kendra is severely injured as a result. Kendra will not be able to sue Mike because Kendra was informed about the risk of accepting a ride from Mike but chose to accept the ride.

If you have questions about assumption of the risk, you should consult an experienced personal injury lawyer to guide you thorough the process.