What Are The Defenses To Assumption Of Risk in Torts?

Defenses to assumption of risk typically include lack of voluntary assumption, lack of knowledge of the risk, and violation of public policy. These defenses argue that the plaintiff did not knowingly accept the risk or that enforcing the assumption contradicts societal interests.

Assumption of risk in tort law occurs when a plaintiff knowingly and voluntarily accepts the risks associated with an activity, thus limiting their ability to recover damages for injuries sustained. Defenses against a claim of assumption of risk primarily challenge the plaintiff's agreement to assume that risk. One significant defense is the lack of voluntary assumption. If a plaintiff was coerced into participating in an activity or if they felt they had no real choice, then a court may determine they did not voluntarily assume the risk.

Another important defense is lack of knowledge. The plaintiff must have actual or constructive knowledge of the risk involved in their actions. If the risk was hidden, unknown, or not reasonably foreseeable, then the defendant may be unable to successfully claim that the plaintiff assumed that risk.

Moreover, public policy considerations can serve as a critical defense against the enforcement of assumption of risk. If recognizing the assumption of risk would undermine public interests, such as safety regulations or social obligations (for instance, assuming the risk of medical treatment that is negligently administered), a court may reject the defense.

Finally, some jurisdictions recognize a distinction between primary and secondary assumption of risk. In cases of primary assumption, the defendant is not liable because the plaintiff voluntarily chose to engage in obvious risks. However, in secondary assumption of risk, where the defendant may have still acted negligently, the court may consider the comparative fault of both parties instead of barring recovery outright.

• 1Tunkl v. Regents of University of California (1963) - Established limits on the enforceability of exculpatory clauses in contexts involving public interest.
• 2Morris v. McCarty (1970) - Discussed the importance of knowledge of risk in voluntary assumption.
• 3Gentry v. A.W. Baird & Co. (1992) - Examined coercion as a valid defense against assumption of risk.

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