Assumption of risk is a defense that is sometimes raised in personal injury lawsuits. Essentially, under this doctrine, a party is not allowed to recover damages from an injury if she voluntarily put herself in harm’s way or voluntarily exposed herself to a known danger. A defendant generally raises this defense in order to discount facts given by the plaintiff.
For example, assume that Joe broke his arm when he fell into a manhole while walking down the street in the town of Anywhere. He may sue the town for negligence, seeking to recover damages for his injuries. Suppose, however, that the town had roped off the area where the manhole was and posted large signs warning pedestrians to avoid it. In its defense, the town may raise the doctrine of assumption of risk. The town may argue that Joe voluntarily assumed the risk of injury because he walked through the area even though it was roped off and large warning signs were posted.
Typically, the defendant must affirmatively prove assumption of risk in order for it to stand as a defense in court. This is done by first showing that the plaintiff was aware of a particular risk. In the example above this would be demonstrated by evidence showing that the town had posted signs and roped off the area, making Joe aware of the risk. The second element that must be proved is that the plaintiff voluntarily assumed the risk. By choosing to ignore the ropes and signs, Joe arguably voluntarily assumed the risk of getting injured in the manhole.
This defense can be classified as express or implied. Express assumption of risk occurs when a plaintiff explicitly agrees to take on a risk. This is often done through a contract. For instance, if Jane is going skydiving, she will likely be required to sign a release form indicating that she is aware that skydiving is dangerous but she agrees to accept the risks associated with it. The release will also like relieve the skydiving company of liability in the event Jane is injured.
Implied assumption of risk occurs when the plaintiff’s actions imply that the plaintiff has consent to assume the risk. Although the plaintiff does not have a contract with the defendant, the plaintiff’s conduct evidences that the plaintiff has agreed to voluntarily take on the risk. Joe’s injuries from the manhole, in the example above, would be implied assumption of risk.
