assumption of risk

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Assumption of risk is a common law doctrine that refers to a plaintiff’s inability to recover for the tortious actions of a negligent party in scenarios where the plaintiff voluntarily accepted the risk of those actions. Potential plaintiffs sometimes take the risk of injury onto themselves and absolve potential defendants from any liability.  Formerly, this was an affirmative defense available to defendants, but has since been subsumed by contributory and comparative negligence in most jurisdictions; for example, see Justice Ginsburg's dissent in Honda Motor Co. v. Oberg, 512 US 415 (1994). Some courts, like those in California, have further interpreted assumption of risk to include scenarios in which the defendant does not have a duty of care to the plaintiff. 

Assumption of risk can either be express or implied.

  • Express assumption of risk, typically achieved through a signed waiver, prevents an injured plaintiff from recovering beyond the terms of the waiver so long as the waiver is not against public policy. Although generally raised in tort cases, courts often treat express assumption of risk as a contract issue. 
  • Implied assumption of risk prevents a party with knowledge and appreciation that they are at risk from recovering against a tortfeasor for any harm within that risk. Harm within the risk generally includes any harm which is inherent to the activity; for example, the risk of physical injury while playing contact sports. 

Implied assumption of risk has since been merged into the doctrine of comparative negligence in many jurisdictions due to their substantial overlap. Oregon, for example, abolished the defense by statute. In places where this merge occurred, implied assumption of risk diminishes but does not entirely remove a plaintiff’s ability to recover. 

Some jurisdictions further divide implied assumption of risk into primary and secondary assumption. Under primary assumption of risk, the defendant had no duty of due care to the plaintiff at all, and, as such, they cannot be found negligent. The typical example of primary assumption of the risk is participating in sporting events

Secondary assumption of risk occurs when a defendant does have a duty of due care to the plaintiff and that duty was breached. In these scenarios, secondary assumption of risk will be evaluated as if it were comparative negligence. 

[Last updated in June of 2022 by the Wex Definitions Team]