Assumption of risk

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Assumption of risk is a defense, specifically an affirmative defense, in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which the plaintiff was participating at the time of their injury. [1]

Contents

Primary vs. secondary

"Primary" assumption of risk occurs when the plaintiff knows about a particular risk and—through words or conduct—accepts that risk, thereby relieving the defendant of its duty of care. [2] The primary assumption of risk defense operates as a complete bar to recovery. [3] For example, someone who goes skiing assumes the risk that they will fall and break a bone and cannot sue a ski resort for such an injury in the absence of additional fault, such as the failure to properly maintain safety equipment. [4]

"Secondary" assumption of risk exists where the defendant has a continuing duty of reasonable care to the plaintiff, but the plaintiff knows about the risk caused by the defendant's negligence and proceeded despite that knowledge. [5] For example, an employer supplies an employee with a defective piece of machinery, and knowing the machinery is defective, the employee proceeds to use it anyway (albeit carefully). [2] If the machinery causes injury, the employer may have a secondary assumption of risk defense. [2] In comparative negligence jurisdictions, secondary assumption of risk is applied as a factor that the jury can consider in apportioning fault, rather than a complete defense. [6]

The California Supreme Court explained the difference between primary and secondary assumption of risk (under California law) as follows:

In cases involving 'primary assumption of risk'—where, by virtue of the nature of the activity and the parties' relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff's recovery. In cases involving 'secondary assumption of risk'—where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant's breach of duty—the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibility of the parties. [7]

Some states have abrogated the primary assumption-of-risk defense in certain situations because they have determined that the defendant in that situation should not be absolved of its duty of care, even if the plaintiff assumed the risk (such as by signing a premises liability waiver). [2] States have, for example, passed laws abrogating primary assumption of risk for employers engaged in dangerous activities and for landlords with regard to safety conditions on their properties. [2]

Express vs. implied

Express assumption of risk occurs when the plaintiff explicitly accepts the risk, whether by oral or written agreement. [8] For example, a gym requires its members to sign a liability waiver stating that the gym is not legally responsible for any injuries if the member drops heavy weights on themself. A signed liability waiver, however, is not a blanket exemption from liability for operators of a dangerous activity. [9] The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Courts often refuse to enforce a general liability waiver if it fails to inform the signer of the specific risk that caused the injury. [9] Additionally, even express assumption of risk cannot absolve a defendant of liability for reckless conduct (only negligent conduct). [10]

Implied assumption of risk occurs when the plaintiff's conduct demonstrates that the plaintiff knew of the risk and proceeded anyway. [8] If the implied assumption of risk is eligible for the primary assumption-of-risk defense, the defendant has no liability. If the implied assumption does not qualify for primary assumption of risk, the plaintiff's award may be reduced by the amount of fault the fact-finder determines the plaintiff to have by knowing the risk and proceeding anyway. An example of implied assumption of risk is when a spectator goes to a baseball game, the spectator is deemed to accept the risk of being hit by foul balls or home runs. [2]

The implied assumption of risk defense is commonly asserted in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving, but actually extends to all dangerous activities. Thus, for example, it was held that a visitor to the Burning Man festival assumed the risk of getting burned. [11]

See also

Related Research Articles

Negligence is a failure to exercise appropriate and/or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property.

Product liability is the area of law in which manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Although the word "product" has broad connotations, product liability as an area of law is traditionally limited to products in the form of tangible personal property.

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of Insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. In some, but not all, civil and mixed law jurisdictions, the term delict is used to refer to this category of civil wrong, though it can also refer to criminal offences in some jurisdictions and tort is the general term used in comparative law. The word tort stems from Old French via the Norman Conquest and Latin via the Roman Empire. The word 'tort' was first used in a legal context in the 1580s, although different words were used for similar concepts prior to this time.

In criminal and civil law, strict liability is a standard of liability under which a person is legally responsible for the consequences flowing from an activity even in the absence of fault or criminal intent on the part of the defendant.

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and other affirmative defenses such as, in the United States, those listed in Rule 8 (c) of the Federal Rules of Civil Procedure. In criminal prosecutions, examples of affirmative defenses are self defense, insanity, entrapment and the statute of limitations.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

In tort law, a duty of care is a legal obligation which is imposed on an individual, requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability. The duty of care may be imposed by operation of law between individuals who have no current direct relationship but eventually become related in some manner, as defined by common law.

In some common law jurisdictions, contributory negligence is a defense to a tort claim based on negligence. If it is available, the defense completely bars plaintiffs from any recovery if they contribute to their own injury through their own negligence.

English tort law Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

Comparative negligence, called non-absolute contributory negligence outside the United States, is a partial legal defense that reduces the amount of damages that a plaintiff can recover in a negligence-based claim, based upon the degree to which the plaintiff's own negligence contributed to cause the injury. When the defense is asserted, the factfinder, usually a jury, must decide the degree to which the plaintiff's negligence and the combined negligence of all other relevant actors all contributed to cause the plaintiff's damages. It is a modification of the doctrine of contributory negligence that disallows any recovery by a plaintiff whose negligence contributed even minimally to causing the damages.

Where two or more persons are liable in respect of the same liability, in most common law legal systems they may either be:

Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk".

Comparative responsibility is a doctrine of tort law that compares the fault of each party in a lawsuit for a single injury. Comparative responsibility may apply to intentional torts as well as negligence and encompasses the doctrine of comparative negligence.

Causation is the "causal relationship between the defendant's conduct and end result". In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. In criminal law, it is defined as the actus reus from which the specific injury or other effect arose and is combined with mens rea to comprise the elements of guilt. Causation only applies where a result has been achieved and therefore is immaterial with regard to inchoate offenses.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

<i>Ultramares Corp. v. Touche</i>

Ultramares Corporation v. Touche, 174 N.E. 441 (1932) is a US tort law case regarding negligent misstatement, decided by Cardozo, C.J. It contained the now famous line on "floodgates" that the law should not admit "to a liability in an indeterminate amount for an indeterminate time to an indeterminate class."

Knight v. Jewett, 3 Cal. 4th 296 (1992), was a case decided by the California Supreme Court, ruling that the comparative negligence scheme adopted in Li v. Yellow Cab Co. of California did not eliminate the defense of assumption of risk in an action for negligence.

The civil liability of a recreational diver may include a duty of care to another diver during a dive. Breach of this duty that is a proximate cause of injury or loss to the other diver may lead to civil litigation for damages in compensation for the injury or loss suffered.

References

  1. ↑ Vargo, John F. (1978). "Comparative Fault: A Need for Reform of Indiana Tort Law". Indiana Law Review. 11: 832. Retrieved 29 November 2017.
  2. 1 2 3 4 5 6 "Restatement (Second of Torts) Section 496A" (PDF).
  3. ↑ Knight v. Jewett , 3 Cal. 4th 296, 314-315 (1992).
  4. ↑ Drago, Alexander J. (2002). "Assumption of Risk: An Age-Old Defense Still Viable in Sports and Recreation Cases". 12 Fordham Intell. Prop. Media & Ent. L.J. 12: 583.
  5. ↑ Lauer, Barbara (1983). "Torts - Assumption of Risk and the Obvious Danger Rule - Primary or Secondary Assumption of Risk - Sherman v. Platte County or Secondary Assumption of Risk - Sherman v. Platte County". Land & Water Law Review L. 18 (1): 373.
  6. ↑ Diamond, John L. "Assumption of Risk After Comparative Negligence: Integrating Contract Theory into Tort Doctrine" (PDF). Ohio State Law Journal. Retrieved 13 February 2019.
  7. ↑ Knight, 3 Cal. 4th at 314-315.
  8. 1 2 Simons, Kenneth (March 1987). "Assumption of Risk and Consent in the Law of Torts: A Theory of Full Preference". Boston University Law Review. 67: 213.
  9. 1 2 Cotton, Doyice. "Evaluating Your Liability Waiver" . Retrieved 14 February 2019.
  10. ↑ Cheong v. Antablin, 16 Cal. 4th 1067 (1997).
  11. ↑ Beninati v. Black Rock City, LLC, 175 Cal. App. 4th 650 (2009).
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