Assumption of Risk in Personal Injury Lawsuits under Personal Injury
Assumption of Risk in Personal Injury Lawsuits
1. What is Assumption of Risk?
Assumption of Risk is a defense in personal injury law where the defendant claims that the plaintiff voluntarily and knowingly assumed the risks inherent in a particular activity that led to their injury.
2. Types of Assumption of Risk
a. Express Assumption of Risk
Occurs when the plaintiff explicitly agrees, often in writing (like a waiver or release), to accept the risks of a certain activity.
Example: Signing a waiver before participating in a skydiving or skiing activity.
b. Implied Assumption of Risk
Occurs when the plaintiff's conduct shows they knew the risk and voluntarily engaged in the activity despite the risk.
Example: A spectator at a baseball game who gets hit by a foul ball.
3. Elements of Assumption of Risk
To establish assumption of risk, the defendant must show:
Knowledge of the Risk: The plaintiff had actual or constructive knowledge of the particular risk.
Appreciation of the Risk: The plaintiff understood the nature and extent of the risk.
Voluntary Exposure: The plaintiff voluntarily exposed themselves to the risk.
4. How Assumption of Risk Operates in Personal Injury
It reduces or bars liability of the defendant if the plaintiff knowingly accepted the risk of injury.
In some jurisdictions, assumption of risk is treated as a complete defense.
In others, it may be considered under comparative negligence, reducing damages rather than barring recovery.
5. Application Examples
Sports and Recreational Activities
Courts often apply assumption of risk in sports cases, recognizing that injuries are inherent to the activity.
However, reckless or intentional conduct by the defendant is usually not shielded by assumption of risk.
Workplace Injuries
Employees generally cannot assume risks arising from employer negligence or violations of safety regulations.
6. Key Case Law
a. Murphy v. Steeplechase Amusement Co., 250 N.Y. 479 (1929)
Famous “Flopper” case.
Plaintiff injured on an amusement park ride.
Court held plaintiff assumed the risk by voluntarily engaging in a risky activity with knowledge of its danger.
The doctrine applied to bar plaintiff’s recovery.
b. Knight v. Jewett, 3 Cal.4th 296 (1992)
Plaintiff injured in a touch football game.
California Supreme Court held assumption of risk applied because plaintiff voluntarily participated in a contact sport with inherent risks.
Distinguishes between primary assumption of risk (no duty owed) and secondary assumption of risk (plaintiff knowingly confronts a risk created by defendant’s negligence).
c. Dalury v. S-K-I, Ltd., 113 N.H. 592 (1973)
Plaintiff signed a waiver before skiing.
Court found the waiver effective in limiting liability for ordinary negligence but not for gross negligence or reckless misconduct.
d. Tunkl v. Regents of University of California, 60 Cal.2d 92 (1963)
Court ruled that certain waivers (especially for essential services) are against public policy and unenforceable.
7. Distinguishing Assumption of Risk from Other Defenses
| Defense | Description | Effect on Plaintiff’s Recovery |
|---|---|---|
| Assumption of Risk | Plaintiff knowingly accepts the risk | Bars or reduces recovery if knowledge & voluntariness are shown |
| Contributory Negligence | Plaintiff’s own negligence contributed | Bars recovery in strict contributory states; reduces recovery in comparative negligence states |
| Comparative Negligence | Fault shared between plaintiff and defendant | Plaintiff recovery reduced proportionally |
8. Modern Trend: Assumption of Risk in Comparative Negligence Jurisdictions
Many jurisdictions now merge implied assumption of risk into comparative negligence, treating it as part of plaintiff’s fault rather than a separate defense.
Express assumption of risk (waivers) still can serve as a complete defense if valid.
Summary Table
| Aspect | Explanation | Case Example |
|---|---|---|
| Express Assumption of Risk | Written waiver releasing liability | Dalury v. S-K-I, Ltd. |
| Implied Assumption of Risk | Voluntary participation despite known risk | Murphy v. Steeplechase Amusement Co. |
| Primary vs. Secondary | Primary: No duty owed; Secondary: Plaintiff knowingly accepts defendant’s risk | Knight v. Jewett |
| Effect on Recovery | Can bar or reduce plaintiff’s recovery | Depends on jurisdiction |
| Public Policy Limits | Some waivers unenforceable (essential services) | Tunkl v. Regents |
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