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The doctrine of risk assumption is used as a defense in personal injury lawsuits, stating that a party cannot claim damages if they willingly put themselves in danger. The defendant must prove that the plaintiff was aware of the risk and voluntarily assumed it, either through an explicit agreement or implicit behavior.
Risk assumption is a defense that is sometimes brought up in personal injury lawsuits. In essence, according to this doctrine, a party is not entitled to claim damages if he willfully put himself in danger or willfully exposed himself to a known danger. A defendant generally raises this defense in order to detract from the facts provided by the plaintiff.
For example, suppose Joe broke his arm falling down a manhole while walking down the street in the city of Anywhere. He can sue the city for negligence, seeking to recover damages for his injuries. Suppose, however, that the city cordoned off the area where the manhole was located and posted large signs warning pedestrians to avoid it. In defense of him, the municipality can raise the doctrine of risk-taking. The city could argue that Joe voluntarily assumed the risk of injury because he walked through the area even though it was fenced off and large warning signs were posted.
Typically, the defendant must demonstrate affirmative assumption of risk in order for him to serve as a defense in court. This is done by first demonstrating that the plaintiff was aware of a particular risk. In the example above this would be demonstrated by evidence showing that the city has posted signs and cordoned off the area, making Joe aware of the risk. The second element to prove is that the actor voluntarily assumed the risk. By choosing to ignore the ropes and signals, Joe probably voluntarily took the risk of injuring himself in the manhole.
This defense can be classified as expressed or implied. Express risk-taking occurs when an actor explicitly agrees to take a risk. This is often done through a contract. For example, if Jane is going skydiving, she will likely be required to sign a release form stating that she understands that skydiving is dangerous but that she agrees to accept the associated risks. The release will also serve to relieve the skydiving company of liability should Jane be injured.
Implicit risk-taking occurs when the actor’s actions imply that the actor has consent to assume the risk. Although the plaintiff does not have a contract with the defendant, the plaintiff’s behavior demonstrates that the plaintiff has agreed to voluntarily assume the risk. Joe’s injuries from the manhole cover, in the example above, would be an implicit assumption of risk.
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