In today’s world, people engage in fun and exciting activities which, by their very nature, are risky, with the possibility of being injured. Water skiing, rock climbing, watching a baseball game, are all examples of activities that people happily take part in, knowing that they might be injured, or incur some type of property damage. Assumption of risk is a legal theory that means, once a person has knowingly and voluntarily engaged in the risky activity, he cannot sue the host for injuries or damages incurred. To explore this concept, consider the following assumption of risk definition.
Definition of Assumption or Risk
- An affirmative defense in a civil lawsuit where the defense claims the plaintiff knowingly exposed himself to the hazards that caused injury or damages.
What is Assumption of Risk
Assumption of risk refers to situations in which an individual acknowledges the risks associated with any activity, but chooses to take part regardless. In other words, the plaintiff knew the activity could possibly result in physical injury or property damage, but decided to assume the risk in order to have fun.
Richard goes to the local amusement park and watches passengers on a ride that flips them upside down. After watching a few times, Richard decides to ride, but bumps his head when the car flips upside down, resulting in whiplash. After receiving medical care, Richard files a civil lawsuit against the park, seeking payment for his medical bills and pain and suffering.
The park asserts an affirmative defense of assumption of risk, pointing out that Richard chose to attend the amusement park, knowing some rides are extreme. He knew that the ride on which he was injured flipped upside down, and decided to ride it anyway, assuming the risk of possible injury. This is frequently a successful defense in such situations. If, on the other hand, Richard’s injury had been caused by something he could not have foreseen, such as a bolt that came loose on the ride, there is no assumption of risk, and the Park might be held liable.
Express vs. Implied Assumption of Risk
An individual can assume the risks involved in an activity in one of two ways: (1) expressly, by signing an agreement, or (2) by his conduct. Express assumption of risk involves a contract or written agreement in which an individual acknowledges the risk of injury or other damages, and agrees to assume those risks. This often takes the form of a written liability waiver, but may be any written acknowledgment.
John wants to learn how to skydive, and goes to a local skydiving school. The school requires each participant to sign a waiver of liability before participating in lessons or any of the school’s dangerous activities. The document states that the activity has inherent dangers, and that the students agree not to sue the company if injury or death occurs. Once John has signed this waiver, he has expressly assumed the risks involved in taking the skydiving class.
While there is no written contract or agreement in some risky activities, an individual gives implied assumption of risk by his conduct. This means that, when it is clear the individual is aware of the risk involved in some activity, yet he engages in that activity anyway, it is implied that he has assumed the risk.
On Thanksgiving weekend, Tom has his friends and neighbors for a barbecue, and they engage in a game of tackle football in the back pasture. All of Tom’s guests know that there is a chance of being injured in such a game, especially when playing like this without protective equipment. Each guest, by knowing the risks involved, yet choosing to play in the game anyway, has impliedly assumed the risk.
Assumption of Risk as an Affirmative Defense
Affirmative defenses are used in criminal and civil lawsuits to justify a defendant’s actions, or to limit his liability. When using an affirmative defense, the defendant admits to the conduct alleged, but provides an explanation to justify the conduct. Assumption of risk is an affirmative defense commonly used in civil lawsuits to argue that the defendant is not liable for the plaintiff’s damages, as the plaintiff knowingly took part in a dangerous activity.
To successfully use assumption of risk as an affirmative defense, the defendant must show the court that the plaintiff:
- Knew there was a risk of injury or other harm; and
- Knowingly engaged in the activity which resulted in his injury or damages
Assumed risk as an affirmative defense can only be successful if the defendant did not recklessly or intentionally cause the plaintiff’s damages. Some jurisdictions break down assumption of risk into two categories: (1) primary, and (2) secondary. Primary assumption of risk occurs when the defendant does not have a duty to care for the plaintiff because the plaintiff is fully aware of the risks. Secondary assumption or risk takes place if the defendant has a duty of care for the plaintiff, and breaches that duty in some manner.
Jared enters a contaminated area where “No Trespassing” and “Danger-Hazardous Materials” signs are clearly posted. Jared sees the signs, but decides to enter the area anyway. After visiting the area, Jared becomes sick, but has no valid case against the company, as he assumed the risk of entering the dangerous area, causing his own injury.
Assumption of Risk and Liability Waivers
The purpose of having people sign waivers is to protect an individual, company, or entity from liability should those people be injured. Generally speaking, an individual who has signed a liability waiver, or assumption of risk contract, cannot sue the other party to the contract if he suffers injury or damages. Liability waivers are governed by contract law, and so are subject to certain restrictions. These include:
- The contract cannot violate public policy.
- The contract cannot include any intentional or grossly negligent acts.
- The plaintiff must have the capacity to understand the terms in the contract or waiver, and cannot be a minor.
Assumption of risk waivers and contracts are commonly used by companies that offer activities that might result in injury. A sample Assumption of Risk form may be found here.
Assumption of Risk in Attending Sporting Event
In September 1998, Jane Costa and three friends attended a Boston Red Sox baseball game that was held at Fenway Park. The group was seated in an unscreened section near first base. During the bottom of the fifth inning, Darren Lewis, a Red Sox player, stepped up to bat, and hit the ball, which flew into the stands. The ball struck Costa directly in the face, fracturing facial bones, and causing other facial contusions. Costa ended up having reconstructive surgery to install plates in her face, and she now has permanent nerve damage and headaches, which have forced her to quit her job and start receiving disability.
After the accident, Costa filed a lawsuit based on negligence against the Boston Red Sox Club asking for a monetary award for lost wages, medical expenses, and pain and suffering. The plaintiff claimed that the club should have warned fans of the risk associated with watching the game. During trial, the plaintiff acknowledged that a disclaimer of the potential dangers of watching the baseball game was printed on the back of her ticket, but claimed that the print was very small, and that she did not read it.
The court ruled that the defendant had an assumption of risk, as a reasonable person would have been aware of the risks without being given an additional warning. Costa appealed and the appellate court upheld the trial court’s decision, stating that the baseball club did not have a duty to warn of obvious dangers.
Assumption of Risk vs. Premises Liability
In July 2007, Robin Custodi was rollerblading in her neighborhood when she skated around a stopped ice cream truck. She headed into a driveway, skating down the sidewalk a few houses, then back down onto the street. Custodi fell as she transitioned from a driveway to the street, where the driveway met a drainage culvert, with a two-inch height difference between the two. The young woman’s fall resulted in a broken hip.
Custodi filed a civil lawsuit against the City of Amherst, New York, claiming the city had been negligent, seeking damages for medical bills and pain and suffering. The City asserted an affirmative defense of assumption of risk, as she voluntarily engaged in the risky recreational activity of rollerblading, asking that the court issue a summary judgment. The trial court granted the summary judgment based on the assumption of risk doctrine.
An appeal reversed the trial court’s decision, ruling that the defendant was not entitled to a summary judgment based solely on assumption of risk, but that the issue of premises liability needed to be explored at trial.
Related Legal Terms and Issues
- Civil Law – The body of law dealing with private matters between individuals and corporations and other entities.
- Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
- Civil Liability – Responsibility for payment of damages, or for other court-imposed penalties in a civil lawsuit.
- Contract – An agreement between two or more parties in which a promise is made to do or provide something in return for a valuable benefit.
- Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
- Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
- Hearing – A proceeding before the court at which an issue of fact or law is heard, evidence presented, and a decision made.
- Jurisdiction – The legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
- Liable – Responsible by law; to be held legally answerable for an act or omission.
- Negligence – Failure to exercise a degree of care that would be taken by another reasonable person in the same circumstances.
- Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
- Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.