How Does Assumption Of Risk in Torts?

Assumption of risk is a doctrine that bars a plaintiff from recovering for injuries sustained from a risky activity they voluntarily engaged in, having knowingly accepted the associated risks. This can be seen in both express and implied forms.

Assumption of risk is a defense in tort law that serves to absolve a defendant from liability when a plaintiff has voluntarily entered into a risky situation with knowledge of the dangers involved. The doctrine can be classified into two primary categories: express assumption of risk, where the plaintiff explicitly agrees to assume the risk, and implied assumption of risk, where the circumstances imply consent through the plaintiff's conduct.

In express assumption of risk, the plaintiff typically signs a waiver or agreement that outlines the risks associated with a particular activity. For instance, participants in extreme sports such as skydiving are often required to sign waivers acknowledging the inherent dangers involved. Such waivers are often upheld by courts, provided they are clear, unambiguous, and not contrary to public policy.

On the other hand, implied assumption of risk is established when a plaintiff's behavior reflects a willingness to accept the risks present. For example, if an individual chooses to attend a baseball game and is struck by a foul ball, the courts may find that the individual assumed the risk of being injured by a foreseeable occurrence inherent to that activity. Here, the focus is on the reasonable expectations of participants in engaging with certain activities.

However, courts may evaluate the applicability of the assumption of risk doctrine alongside factors such as the duty of care owed by the defendant and whether the risks were inherent to the activity itself. In some jurisdictions, courts may also consider whether the plaintiff had a choice in the matter, particularly in negligence claims involving public safety.

It’s also essential to note that the assumption of risk doctrine may not fully eliminate liability in cases of gross negligence or recklessness, where the defendant's conduct significantly deviates from acceptable standards, thus sparking judicial scrutiny on whether the risks have been adequately conveyed to the plaintiff.

• 1Murphy v. Steeplechase Amusement Co. (1929) - Established that a participant who willingly engages in an activity assumes commonly known risks.
• 2Smith v. Baker (1891) - Addressed the limits of assumption of risk in the context of employer liability.
• 3Powers v. Standard Oil Co. (1936) - Highlighted the distinction between express and implied assumption of risk.
• 4Murray v. Chicago Transit Authority (1961) - Examined the scope of inherent risks vs. those that are created by negligent conduct.

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