PastPaperHero | Negligence - Assumption of risk

Learning Outcomes

This article explains the defense of assumption of risk in negligence actions, including:

Distinguishing express from implied assumption of risk and spotting clear textual or conduct-based indicators on multiple-choice and essay fact patterns.
Applying the elements of actual knowledge, appreciation, and voluntary exposure to specific dangers, and rejecting answer choices that rely only on “should have known” standards.
Analyzing how assumption of risk operates and interacts with contributory negligence, pure and modified comparative fault, and strict liability, and predicting its effect on a plaintiff’s ultimate recovery (complete bar versus reduction).
Differentiating primary from secondary implied assumption of risk, framing primary assumption as a duty/no-duty issue, and using that framework in sports and recreational injury questions.
Evaluating when waivers and exculpatory clauses are enforceable, void, or narrowly construed under public policy, statutory, or contract-law limits, especially where releases purport to cover reckless or intentional conduct.
Integrating assumption of risk arguments with breach, causation, and damages analysis on MBE-style questions, eliminating distractor defenses, and articulating clear, exam-ready rule statements.

MBE Syllabus

For the MBE, you are required to understand assumption of risk as a defense to negligence, with a focus on the following syllabus points:

Defining assumption of risk and recognizing it as an affirmative defense.
Distinguishing express assumption of risk (usually contractual) from implied assumption of risk (inferred from conduct).
Identifying the required elements: plaintiff’s actual knowledge of the specific risk, appreciation of its magnitude, and voluntary choice to encounter it.
Determining when assumption of risk operates as a complete bar versus merely reduces recovery under comparative fault rules.
Understanding the interaction between assumption of risk, contributory negligence, comparative negligence/fault, and strict liability.
Applying the concepts of “primary” and “secondary” implied assumption of risk, especially in sports and recreational activities.
Recognizing public policy and statutory limits on exculpatory clauses (e.g., attempts to waive liability for reckless or intentional conduct).
Spotting common exam traps where mere awareness of a general danger or ordinary negligence is mislabeled as assumption of risk.

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.

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.
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%.
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 conduct 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.

Assumption of risk is closely related to, but conceptually distinct from, contributory negligence and comparative fault:

Contributory negligence focuses on the plaintiff’s failure to exercise reasonable care for their own safety.
Assumption of risk focuses on the plaintiff’s informed and voluntary decision to engage with a known danger.

Key Term: Contributory Negligence
A doctrine under which any negligence by the plaintiff that contributes to their injury is a complete bar to recovery.

Key Term: Comparative Fault
A system in which the plaintiff’s damages are reduced in proportion to their percentage of fault, but recovery is not necessarily barred.

On MBE questions, the examiners often test whether you can distinguish between:

A plaintiff who should have known of a risk (negligence) and
A plaintiff who actually knew and appreciated the specific risk but proceeded anyway (assumption of risk).

Elements of Assumption of Risk

Although phrasing varies, implied assumption of risk typically requires proof of three elements:

Actual Knowledge of the specific risk created by the defendant’s conduct.
Appreciation of the nature and magnitude of that risk.
Voluntary Encounter with that risk for the plaintiff’s own purposes.

Mere awareness that “something dangerous might happen” is not enough; the plaintiff must understand the particular hazard that causes the injury.

Voluntariness is also important. If the plaintiff realistically had no reasonable alternative but to confront the risk (for example, the only exit from a building passes through an unsafe area), courts are reluctant to find a voluntary assumption of risk.

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 the defendant’s potential negligence and to relieve the defendant of liability.

Common contexts include:

Ski area rental contracts.
Gym and fitness center memberships.
Recreational activities such as bungee jumping, rock climbing, and skydiving.
Some commercial leases and service contracts.

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 (the drafter).
The agreement is clear and conspicuous, especially as to whether it covers the defendant’s own negligence.
Enforcement does not violate public policy.

Public policy limits are heavily tested. Courts often refuse enforcement where:

The agreement purports to release liability for reckless, wanton, or intentional wrongdoing.
The conduct amounts to gross negligence in some jurisdictions.
There is a gross disparity of bargaining power and the plaintiff has no realistic alternative (e.g., adhesion contracts in essential services).
The service is one of great importance to the public (e.g., hospitals, medical providers, common carriers, many utilities).
Statutes specifically prohibit such waivers (e.g., in some employment or landlord-tenant contexts, or certain recreational settings).

Contract defenses such as fraud, duress, and unconscionability may also render a waiver unenforceable.

Effect of Express Assumption of Risk

If valid and applicable to the injury-causing risk, express assumption of risk generally acts as a complete bar to the plaintiff’s recovery, even in comparative negligence jurisdictions. The reasoning is that the plaintiff has contractually agreed to relieve the defendant of duty.

However:

The agreement is construed narrowly.
If the harm that occurs is different in kind from what was contemplated, courts may refuse to apply the waiver.

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 falls within the scope of the injury and serves as a complete defense for the resort.

Worked Example 1.2

A health club membership contract states, in fine print on the back of the agreement: “Member releases the club from all liability, including liability for intentional assaults by employees.” A member is assaulted by a trainer. The club invokes the waiver. Is the waiver enforceable as to the intentional assault?

Answer:
Almost certainly not. Courts typically will not enforce waivers that attempt to disclaim liability for intentional or reckless conduct. Public policy strongly disfavors allowing a business to contract away responsibility for intentional attacks by its own employees, so the express assumption of risk clause will not bar the member’s claim.

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:

Actual Knowledge: Subjectively known of the specific risk created by the defendant's conduct.
Appreciation: Understood the nature and seriousness of that risk.
Voluntary Encounter: Freely and voluntarily chosen to encounter that 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.

Key points about the elements:

The knowledge requirement is subjective: Did this plaintiff actually know? Courts may infer knowledge from the obviousness of the danger and the plaintiff’s experience.
The voluntary element is defeated if the plaintiff is effectively compelled by circumstances (employment, emergencies, or lack of reasonable alternatives).

Common scenarios:

Spectators at sporting events (flying pucks, foul balls, errant golf balls).
Participants in recreational sports (tackle in football, body contact in hockey, falls in skiing).
Riding with an obviously intoxicated driver.
Choosing to work around a known, specific hazard for non-compelled reasons.

Worked Example 1.3

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), appreciated the potential for injury, and voluntarily chose to sit in an unprotected area. In most jurisdictions, this classic scenario is treated as assumption of risk; whether it is a complete bar or just reduces recovery depends on the fault regime.

Worked Example 1.4

Worker at a warehouse knows that a particular forklift has defective brakes. The employer has no alternative forklift and tells Worker to “use it or go home.” Worker uses the forklift and is injured when it fails to stop. The employer argues implied assumption of risk. Is the “voluntary” element satisfied?

Answer:
Probably not. Although Worker knew of and appreciated the risk, the voluntariness is undermined by economic compulsion and lack of reasonable alternatives. Many courts are reluctant to find assumption of risk where an employee must choose between a paycheck and personal safety. The conduct may still be relevant as comparative fault, but a complete assumption-of-risk bar is unlikely.

Distinguishing Assumption of Risk from Contributory/Comparative Negligence

On exam questions, it is essential to separate:

A plaintiff who acts unreasonably without fully understanding a risk (negligence), and
A plaintiff who fully understands and then accepts a specific risk (assumption of risk).

For example:

A person who fails to look both ways before crossing is negligent.
A person who knowingly runs across a track as a train approaches, understanding the danger but trying to “beat the train,” may both be negligent and have assumed the risk.

In most comparative fault jurisdictions, both concepts are merged and treated as part of the same comparative-fault calculation.

Interaction with Contributory and Comparative Negligence

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

Key Term: Primary Assumption of Risk
A form of assumption of risk in which, because of the nature of the activity, the defendant owes no duty (or only a limited duty) to protect the plaintiff from certain ordinary risks of that activity.

Key Term: Secondary Implied Assumption of Risk
A form of assumption of risk in which the defendant is negligent, but the plaintiff knowingly and voluntarily encounters the risk created by that negligence.

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.

In such jurisdictions:

Contributory negligence by itself is a complete bar.
Assumption of risk is an additional complete defense, often overlapping with contributory negligence but analytically distinct.

Comparative Negligence Jurisdictions

Most states now follow some form of comparative negligence (pure or modified). The treatment of implied assumption of risk varies and is frequently tested:

Majority (“Merged”) View:
Most comparative fault jurisdictions have abolished secondary implied assumption of risk as a separate, complete defense. Instead, the plaintiff's conduct in unreasonably encountering a known risk is treated as one type of comparative fault, reducing (but not necessarily barring) recovery in proportion to the plaintiff's percentage of fault.
- Express assumption of risk remains a separate complete defense.
- “Primary” assumption of risk is often recast as a duty issue (see below).
Minority (“Retained”) View:
Some comparative-fault states retain secondary implied assumption of risk as a complete bar to recovery, separate from comparative negligence. In these states, a plaintiff who knowingly and voluntarily confronts a risk created by the defendant’s negligence may recover nothing, even if the defendant was more negligent.

On the MBE, if a question specifies that a jurisdiction has “merged” implied assumption of risk into comparative fault, treat the plaintiff’s decision to encounter a known risk as a form of comparative negligence: it proportionally reduces, rather than eliminates, damages.

“Primary” Implied Assumption of Risk: Duty Limitation

Primary assumption of risk applies where the defendant owes no duty (or only a limited duty) to protect the plaintiff from certain ordinary risks of an activity. This often arises in sports and recreational activities:

Tackling in football.
Body contact in hockey.
The risk of falling while skiing on a clearly marked slope.

In such cases:

The defendant is not liable because there is no breach of duty with respect to these ordinary risks.
It is sometimes phrased as “the plaintiff assumed the typical risks of the activity,” but analytically it is a no-duty or limited-duty doctrine.

Even in jurisdictions that have merged implied assumption of risk into comparative fault, primary assumption of risk remains important because it can completely preclude recovery by eliminating duty.

Worked Example 1.5

A recreational hockey player is injured when another player body-checks him during a game. The check is hard but within the rules and custom of the sport. The injured player sues the rink owner for failing to prevent “dangerous physical contact.” How should the court treat the claim?

Answer:
The claim is barred by primary assumption of risk (or equivalently by the absence of duty). Body contact is a typical, obvious risk of hockey. The rink owner has no duty to eliminate ordinary physical contact that is part of the game. Because the risk is a normal part of the activity, there is no breach of duty, and the player cannot recover for this type of injury.

Secondary Implied Assumption of Risk: Comparative Fault vs. Complete Bar

Secondary implied assumption of risk applies where:

The defendant was negligent, creating a risk, and
The plaintiff knows and voluntarily chooses to confront that specific risk.

Examples include:

Riding with a driver you know to be drunk.
Walking across a visibly icy walkway instead of taking a safe alternative route.
Continuing to use a product after learning of a specific defect.

In:

Contributory negligence jurisdictions and minority comparative-fault states that retain the doctrine:
Secondary implied assumption of risk remains a complete bar to recovery.
Most comparative fault jurisdictions:
Secondary implied assumption of risk is folded into comparative fault. The fact that the plaintiff knowingly encountered the risk increases their percentage of fault and reduces the damage award proportionally, but does not automatically bar recovery.

Interaction with Strict Liability

Assumption of risk also interacts with strict liability, which may be tested in combination with negligence:

Under strict liability (e.g., abnormally dangerous activities, certain animal cases), the defendant is liable regardless of the level of care.
Contributory negligence generally is not a defense to strict liability.
Assumption of risk, however, is a complete defense in both contributory and comparative fault jurisdictions: a plaintiff who knowingly and voluntarily confronts the risk posed by an abnormally dangerous activity can be completely barred.

Example: A person knowingly enters a clearly marked blasting zone during blasting operations and is injured. Even though the blaster is strictly liable, the plaintiff’s assumption of risk can bar recovery.

Worked Example 1.6

Passenger knows Driver is heavily intoxicated, jokes about Driver being “wasted,” and nonetheless voluntarily gets into Driver’s car to go home when taxis and rideshares are readily available. Driver negligently crashes, injuring Passenger. The jurisdiction follows pure comparative negligence and has merged assumption of risk into comparative fault. How is Passenger’s claim affected?

Answer:
Passenger’s knowing decision to ride with a clearly intoxicated driver will be treated as comparative fault. The jury will assign percentages of fault—for example, Driver 70%, Passenger 30%—and Passenger’s damages will be reduced by their share (here, 30%). There is no complete bar because secondary implied assumption of risk has been merged into comparative fault in this jurisdiction.

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.

Additional exam tips:

Do not confuse primary assumption of risk (no duty) with comparative fault. If the risk is truly a normal part of a sport or activity, the defendant may have no duty to protect the plaintiff from that risk.
Watch for questions where a waiver attempts to disclaim liability for intentional or reckless conduct; these are almost always unenforceable.
Distinguish between “should have known” (negligence) and “did know and accepted” (assumption of risk). The MBE often uses this as a subtle issue.

Revision Tip

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

When you see a possible assumption-of-risk fact pattern, ask:

What exactly did the plaintiff know?
Did the plaintiff have a reasonable alternative?
Is the activity one with obvious, typical risks (primary assumption of risk)?
Is the jurisdiction contributory, pure comparative, or modified comparative, and has it merged implied assumption of risk into comparative fault?

Answering these questions systematically will keep you aligned with how the MBE expects you to analyze such problems.

Key Point Checklist

This article has covered the following key knowledge points:

Assumption of risk is a defense where the plaintiff knowingly and voluntarily encounters a risk created by the defendant's conduct.
Express assumption of risk involves an explicit agreement (often written) and, if enforceable and within scope, usually bars recovery completely, subject to public policy and contract defenses.
Implied assumption of risk is inferred from the plaintiff's conduct and requires subjective knowledge, appreciation, and voluntary encounter of the specific risk.
The effect of implied assumption of risk varies: it is a complete bar in contributory negligence states and in some comparative-fault states, but is merged into comparative fault (reducing damages) in most comparative-fault jurisdictions.
Primary assumption of risk is often analyzed as a duty issue: defendants owe no duty to protect against ordinary risks of certain activities (e.g., typical sports risks), so there is no breach and no liability.
Secondary implied assumption of risk concerns knowingly confronting a risk created by the defendant’s negligence; it is either a complete bar (in contributory or minority comparative jurisdictions) or part of the comparative fault calculus (in majority jurisdictions).
Under strict liability, contributory negligence is generally not a defense, but a plaintiff’s assumption of the risk is a complete bar to recovery.
Waivers and exculpatory clauses cannot usually release liability for reckless or intentional conduct, and may be void when they involve essential services, gross disparity in bargaining power, or statutory prohibitions.
On MBE questions, carefully distinguish between “should have known” (negligence/comparative fault) and “actually knew and accepted” (assumption of risk) and always tie your analysis to the jurisdiction’s fault system.

Key Terms and Concepts

Assumption of Risk
Express Assumption of Risk
Implied Assumption of Risk
Contributory Negligence
Comparative Fault
Primary Assumption of Risk
Secondary Implied Assumption of Risk

Negligence - Assumption of risk