Assumption of Risk

Assumption of risk is a defense to negligence in which the defendant argues that the plaintiff voluntarily consented to accept a known risk of harm. The doctrine comes in two forms: express and implied. Express assumption of risk occurs when the plaintiff explicitly agrees, typically through a written waiver or release, to accept the risk of harm. Implied assumption of risk occurs when the plaintiff's voluntary conduct demonstrates awareness and acceptance of the risk without a formal agreement.

Implied assumption of risk is further divided into primary and secondary assumption of risk, a distinction that has become critical in comparative negligence jurisdictions. Primary assumption of risk arises when the defendant owes no duty to protect the plaintiff from the inherent risks of a particular activity — for example, a baseball spectator hit by a foul ball accepts the inherent risks of watching the game. In these cases, the defendant has no duty, and the claim fails on the duty element. Secondary assumption of risk occurs when the defendant does owe a duty but the plaintiff knowingly encounters a risk created by the defendant's breach — for example, a passenger who rides with a visibly intoxicated driver.

In comparative negligence jurisdictions, secondary implied assumption of risk has generally been merged into the comparative fault analysis and is no longer a complete bar. Instead, the plaintiff's decision to encounter the risk is factored into the fault apportionment. Primary assumption of risk, however, survives as a complete bar even in comparative fault jurisdictions because it operates at the duty level. Express assumption of risk through valid waivers also continues to bar recovery in most contexts, though courts scrutinize such waivers for voluntariness, clarity, and public policy concerns.