Assumption of risk is an affirmative defense that a defendant can raise in a negligence action. In the context of personal injury law, assumption of risk bars a plaintiff from recovering damages when he or she willingly exposes him or herself to a known danger or hazardous condition. This defense is often raised in premises liability cases in which there are “no trespassing” signs, sports injury cases, waiver and release clause disputes, and any other activity involving an obvious risk.
In order to successfully raise an assumption of risk defense, the defendant must show that the plaintiff had knowledge of the inherent risk and that he or she voluntarily accepted the risk. This acceptance may be made expressly, through a signed agreement such as a waiver, or implied by the plaintiff’s words or conduct.
In short, personal injury lawsuits are based on the theory of negligence which requires proving four elements: duty, breach, causation, and damages. If a plaintiff has assumed the risk in a given situation, then the defendant does not owe a legal duty to the plaintiff. Since the duty element has not been met, the plaintiff cannot recover damages for injuries caused either by the inherent risks of the activity or the defendant’s negligence.
Moreover, assumption of risk can either be “express” or “implied.” Express assumption of risk usually involves an agreement between the parties. For example, an individual who joins a gym or undertakes a dangerous activity such as skydiving may be required to sign a waiver of liability form. In the event of an injury, the court will decide if the waiver bars the plaintiff from recovering damages.
On the other hand, implied assumption of risk does not involve a written agreement. Instead, it is typically based on statements or conduct by the plaintiff indicating he or she understood the possible harm of an activity or situation and consented to the risk under those circumstances. For example, an individual who injures a knee during a pick-up basketball game most likely cannot hold anyone liable for his or her injury.
Because the negligence standard typically relied on in personal injury cases does not apply, in order to have a valid claim, it is necessary for the plaintiff to show that the defendant acted recklessly or intentionally in causing the injury.