Who Has The Burden Of Proof For Assumption Of Risk in Torts?

In tort cases involving assumption of risk, the burden of proof typically lies with the defendant. The defendant must prove that the plaintiff knowingly assumed the risk associated with the activity.

The doctrine of assumption of risk is a defense in tort law that operates to eliminate or reduce the liability of a defendant when a plaintiff has voluntarily engaged in an activity with known risks. Generally, in tort cases related to assumption of risk, the burden of proof is placed on the defendant. This is because the defendant must demonstrate that the plaintiff had knowledge of the risk and voluntarily chose to accept it, effectively relinquishing any claim for negligence against the defendant.

To satisfy this burden, defendants often present evidence showing that the plaintiff was aware of the risks involved in the activity and that their consent was informed. This can include showing that the plaintiff participated in the activity despite understanding the inherent dangers, for example, through prior experience or explicit warnings.

This doctrine is often employed in cases of recreational activities, such as sports or extreme sports, where participants are presumed to understand the risks. However, the nuances of each case matter, as courts may also consider the reasonableness of the plaintiff's assumption of risk relative to the circumstances surrounding the activity.

Notably, courts analyze whether the plaintiff's assumption of risk is expressed (clearly stated, often through waivers) or implied (inferred from actions). If the defendant cannot meet the burden of proof regarding the plaintiff's assumption of risk, the plaintiff may prevail in their claim for damages due to negligence.

• 1Tunkl v. Regents of University of California (1963) - addressed the enforceability of liability waivers, emphasizing public policy considerations in the context of assumption of risk.
• 2Murphy v. Steeplechase Amusement Co. (1929) - illustrated the concept by holding that a rider assumed the risk of injury while participating in a well-known amusement park ride.
• 3Snyder v. American Association of Blood Banks (1995) - examined informed consent and the related assumption of risk in a medical context.
• 4Farwell v. Keaton (1976) - focused on a social host's liability and addressed whether the assumption of risk applied in social contexts.

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