“Assumption of risk” is a defense that is often raised in premises liability cases, when a signed liability waiver is involved, extreme sporting accidents, and other cases where risk was allegedly apparent. For instance, if you are injured while bungee jumping and sue the company operating the bungee jump site, the company owner may argue that you were informed of the inherent risk of your actions, via having signed a liability waiver explaining the dangers of bungee jumping or the signs warning of such on the property.
Assumption of risk is an affirmative defense—a defense in which someone shows evidence that indicates, while they contributed to an accident, they are not financially liable—that a defendant can claim in a negligence action. Specifically, the defense relates to the voluntary exposure to a known danger. A plaintiff may be barred from seeking damages based upon their knowledge of a danger or hazard that they willingly exposed themselves to. In short, the defendant can claim that the plaintiff knew the danger of their action but took the risk of being injured anyway.
The idea is that the defendant does not owe any legal duty to the plaintiff if the plaintiff willingly took a risk that led to their injury.
To successfully use the assumption of risk defense, a defendant must prove that the danger which led to the plaintiff’s injury was apparent, or that the plaintiff’s conduct was inherently dangerous. To claim the assumption of risk defense, a defendant must prove:
- The plaintiff had actual knowledge of the risk involved, and
- The plaintiff voluntarily accepted the risk, either expressly through agreement or implied by their words or conduct
As mentioned in stipulation 2, there are two types of risk: express and implied.
Express assumption of risk is when an individual voluntarily accepts a risk through a signed or verbal agreement. A liability waiver is a good example of express assumption or risk. A defendant may use the express assumption of risk defense if, for example, they are being sued by a plaintiff who sustained an injury after they signed a liability waiver. There are some exceptions to this not delineated in this blog.
Implied assumption of risk is when an individual voluntarily accepts a risk through their actions. Implied assumption of risk is a defense commonly used in cases of injuries that result from playing or attending recreational sports, such as baseball, basketball, or skiing. It has also been asserted as a defense for injuries sustained at concerts and festivals, though this is not an exhaustive list.
In California, the law is further broken down to primary and secondary assumption of risk—with the latter, a defendant can be held partially liable.
In Knight v. Jewett (1992), the California Supreme Court set forth the ideas of primary assumption of risk and secondary assumption of risk. The case centered on an injury sustained while playing flag football. The plaintiff alleged that the defendant pushed her over and stepped on her fingers during their flag football game.
In this case, the court ruled that the defendant’s action—accidentally stepping on the plaintiff’s fingers—was within the normal course of the football game. As such, the plaintiff was barred from recovering damages.
Why does the ruling matter? The verdict merged two ideas: secondary assumption of risk and comparative negligence. Instead of outright barring a plaintiff from recovering damages, an injured plaintiff and defendant share a percentage of fault under comparative negligence. The ruling also held that primary assumption of risk could still serve as a defense to negligence.
Here is how the court defined primary and secondary assumption of risk:
Primary assumption of risk arises when a plaintiff participates in an inherently dangerous activity and they are barred from recovering damages because the defendant does not owe them a duty of care. In the case of Knight v. Jewett, the defendant’s actions fell under the primary assumption of risk.
Secondary assumption of risk arises when a defendant does owe a plaintiff a duty of care, but the plaintiff participates in the inherently risky activity anyway. The litigants are then subject to the comparative negligence doctrine in which each are assigned a percentage of fault. For example, in general, an indoor trampoline company owes their customers a duty of care. Most likely, customers will sign a liability waiver acknowledging the risk of jumping. If someone jumps on an exposed trampoline spring and sustains an injury, the trampoline company and the injured individual may share fault. In this example, while the activity was inherently dangerous, the facility owner could have reduced the likelihood of injury by covering the springs.
Although the Knight v. Jewett case involved recreational sports players, the idea of primary and secondary assumption of risk extends to persons engaging in any activity with inherent risk.
To be clear, an activity’s inherent risk pertains to the activity only. If a defendant’s actions are more dangerous than the risks associated with the activity itself—for example, a recreational basketball player punches another player during the game—then the defendant may still be found liable. A person participating in a boxing or mixed martial arts match would reasonably expect that they might get punched. A person playing basketball would not. In the former instance, primary assumption of risk applies. In the latter, the attacker or the venue may be held financially liable.
If you’ve been injured due to circumstances like those described above, consult with a lawyer to determine if assumption of risk applies to your case.
