Negligence - Assumption of risk

Learning Outcomes

This article explains the defense of assumption of risk in negligence actions. After studying this material, you will understand the distinction between express and implied assumption of risk, the elements required to establish the defense (knowledge and voluntary encounter of the risk), and how its application impacts a plaintiff's recovery, particularly in jurisdictions applying contributory negligence versus comparative fault principles. This knowledge is essential for analyzing negligence scenarios on the MBE.

MBE Syllabus

For the MBE, you need to understand assumption of risk as a defense to negligence. This involves differentiating its types and assessing its impact on liability in various fault systems. Key areas include:

  • Defining assumption of risk and its two main forms: express and implied.
  • Analyzing the elements of knowledge and voluntary acceptance required for the defense.
  • Determining when assumption of risk acts as a complete bar versus when it reduces damages under comparative negligence.
  • Understanding the interaction between assumption of risk and contributory/comparative negligence doctrines.
  • Recognizing public policy limitations on the enforceability of assumption of risk defenses.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Plaintiff signs a waiver before bungee jumping, acknowledging the risks. The bungee cord snaps due to the operator's negligent maintenance. Which statement is most accurate regarding the waiver's effect?
    1. The waiver is an absolute bar to recovery.
    2. The waiver is likely invalid if it purports to cover the operator's negligence.
    3. The waiver constitutes implied assumption of risk.
    4. The waiver is relevant only in contributory negligence jurisdictions.
  2. In a pure comparative negligence jurisdiction, a plaintiff is found to have impliedly assumed 30% of the risk, and the defendant was 70% negligent. What is the likely effect on the plaintiff's recovery?
    1. Plaintiff recovers nothing.
    2. Plaintiff's recovery is reduced by 30%.
    3. Plaintiff recovers 100% because assumption of risk is abolished.
    4. Plaintiff recovers 70%.
  3. A fan at a hockey game is struck by a puck that flies over the glass. The fan knew that pucks occasionally leave the playing area. Which defense is strongest for the arena owner?
    1. Express assumption of risk.
    2. Contributory negligence per se.
    3. Implied assumption of risk.
    4. Lack of proximate cause.

Introduction

Assumption of risk is an affirmative defense asserted by a defendant in a negligence action. It alleges that the plaintiff knowingly and voluntarily encountered a danger created by the defendant’s negligence, thereby relieving the defendant of responsibility for the resulting injury. The viability and effect of this defense vary significantly depending on whether the assumption was express or implied, and on the governing fault system (contributory vs. comparative negligence).

Key Term: Assumption of Risk A defense asserting that the plaintiff recognized and understood a particular risk created by the defendant's negligence and voluntarily chose to encounter it.

Historically, a valid assumption of risk defense completely barred the plaintiff's recovery. Modern comparative fault systems, however, often treat certain forms of assumption of risk differently, potentially reducing rather than eliminating recovery.

Types of Assumption of Risk

There are two primary forms of assumption of risk: express and implied.

Express Assumption of Risk

Express assumption of risk occurs when the plaintiff, in advance, explicitly agrees (usually in writing, but sometimes orally) to relieve the defendant of a legal duty and accept the risk of injury caused by the defendant’s negligence. This often takes the form of a waiver, release, or exculpatory clause.

Key Term: Express Assumption of Risk Plaintiff's explicit agreement, typically contractual, to accept the risk of harm arising from defendant's potential negligence.

  • Enforceability: Courts generally enforce express assumption of risk agreements if:

    • The risk that caused the injury falls within the scope of the agreement. Ambiguities are construed against the defendant.
    • Enforcement does not violate public policy. Courts may refuse enforcement where:
      • The agreement purports to release liability for reckless or intentional wrongdoing.
      • There is grossly unequal bargaining power between the parties.
      • The service involved is essential to the public (e.g., medical services, common carriers).
      • Statutes specifically prohibit such waivers (e.g., in certain employment or landlord-tenant contexts).

  • Effect: If valid and applicable to the injury-causing risk, express assumption of risk generally acts as a complete bar to plaintiff’s recovery, even in comparative negligence jurisdictions.

Worked Example 1.1

Skier signs a detailed rental agreement before renting skis. The agreement includes a clause stating: "Skier assumes all risks of injury arising from skiing, including risks caused by equipment malfunction or the negligence of the ski area operator." Skier is injured when a binding, negligently adjusted by a resort employee, releases improperly. Can Skier recover from the resort?

Answer: Likely no. The skier expressly assumed the risk of injury caused by equipment malfunction or operator negligence. Assuming the waiver is clear, unambiguous, and not against public policy in that jurisdiction, it serves as a complete defense for the resort.

Implied Assumption of Risk

Implied assumption of risk arises when the plaintiff's voluntary exposure to a risk is inferred from their conduct, rather than from an explicit agreement. The plaintiff must have:

  1. Actual Knowledge: Subjectively known of the specific risk created by the defendant's negligence.
  2. Appreciation: Understood the magnitude of that risk.
  3. Voluntary Encounter: Freely and voluntarily chosen to encounter the risk.

Key Term: Implied Assumption of Risk Plaintiff's acceptance of a known risk inferred from conduct, where the plaintiff voluntarily proceeds despite understanding the specific danger.

  • Determining Factors: Courts assess the plaintiff's age, experience, and the obviousness of the danger. The voluntariness element is negated if the plaintiff had no reasonable alternative but to encounter the risk (e.g., the only exit from a building is unsafe).
  • Common Scenarios: Often arises in contexts like attending sporting events (risk of foul balls, flying pucks) or participating in recreational activities known to have built-in dangers.

Worked Example 1.2

Fan sits in an unscreened section behind home plate at a baseball game. Fan is familiar with baseball and knows foul balls frequently enter the stands. Fan is struck and injured by a foul ball. Can Fan recover from the stadium owner?

Answer: Likely no. Fan impliedly assumed the risk. Fan had actual knowledge of the specific risk (foul balls entering the stands) and appreciated the potential for injury. By choosing to sit in an unprotected area, Fan voluntarily encountered that known risk.

Interaction with Contributory and Comparative Negligence

The effect of implied assumption of risk depends heavily on the jurisdiction's approach to plaintiff fault.

Contributory Negligence Jurisdictions

In the few jurisdictions still adhering to traditional contributory negligence, any valid assumption of risk (express or implied) acts as a complete bar to the plaintiff’s recovery.

Comparative Negligence Jurisdictions

Most states now follow comparative negligence. The treatment of implied assumption of risk varies:

  • Majority ("Merged") View: Most comparative fault jurisdictions have abolished implied assumption of risk as a separate, complete defense. Instead, the plaintiff's conduct in unreasonably encountering a known risk is treated as a form of comparative fault, reducing (but not necessarily barring) recovery in proportion to the plaintiff's degree of fault.
  • Minority ("Retained") View: Some comparative fault states retain implied assumption of risk as a complete bar to recovery, separate from comparative negligence. This is sometimes called "secondary implied assumption of risk" (where defendant is negligent, but plaintiff knowingly encounters the risk anyway).
  • "Primary" Implied Assumption of Risk: This concept applies where the defendant owes no duty or a very limited duty to protect the plaintiff from certain built-in risks (e.g., risks built into sports like football tackling). In such cases, the plaintiff is barred from recovery not because they assumed the risk, but because the defendant did not breach the limited duty owed. This analysis often applies even in jurisdictions that have otherwise merged implied assumption of risk into comparative fault.

Exam Warning

Be alert to the jurisdiction's fault system mentioned in the question. In a pure comparative negligence jurisdiction, implied assumption of risk typically reduces recovery, while in a contributory negligence or modified comparative negligence state (if the latter retains it as a separate defense), it may bar recovery entirely. Express assumption of risk usually bars recovery everywhere, unless void against public policy.

Revision Tip

Focus on the elements: Did the plaintiff actually know of the specific risk created by the defendant's negligence and voluntarily choose to encounter it? "Should have known" is negligence, not assumption of risk.

Key Point Checklist

This article has covered the following key knowledge points:

  • Assumption of risk is a defense where P knowingly and voluntarily encounters a risk created by D's negligence.
  • Express assumption of risk involves explicit agreement (often written) and usually bars recovery completely, subject to public policy limits.
  • Implied assumption of risk is inferred from P's conduct; requires subjective knowledge, appreciation, and voluntary encounter of the specific risk.
  • The effect of implied assumption of risk varies: it's a complete bar in contributory negligence states and some comparative fault states, but merged into comparative fault (reducing damages) in most comparative fault states.
  • "Primary" implied assumption of risk analysis focuses on the defendant's lack of duty regarding built-in risks, barring recovery.
  • Waivers releasing liability for reckless/intentional conduct or violating public policy are often unenforceable.

Key Terms and Concepts

  • Assumption of Risk
  • Express Assumption of Risk
  • Implied Assumption of Risk
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