ASSUMPTION OF RISK

A defense, facts offered by a party against whom proceedings have been instituted to diminish a plaintiff'scause of actionor defeat recovery to an action innegligence, which entails proving that the plaintiff knew of a dangerous condition and voluntarily exposed himself or herself to it.

Under the federal rules of civil procedure, assumption of the risk is an affirmative defense that the defendant in a negligence action must plead and prove. The doctrine of assumption of risk is also known as volenti non fit injuria.

Situations that encompass assumption of the risk have been classified in three broad categories. In its principal sense, assumption of the risk signifies that the plaintiff, in advance, has consented to relieve the defendant of an obligation of conduct toward him or her and to take a chance of injury from a known risk ensuing from what the defendant is to do or leave undone. The consequence is that the defendant is unburdened of all legal duty to the plaintiff and, therefore, cannot be held liable in negligence.

A second situation occurs when the plaintiff voluntarily enters into some relation with the defendant, knowing that the defendant will not safeguard the plaintiff against the risk. The plaintiff can then be viewed as tacitly or implicitly consenting to the negligence, as in the case of riding in a car with knowledge that the steering apparatus is defective, which relieves the defendant of the duty that would ordinarily exist.

In the third type of situation, the plaintiff, cognizant of a risk previously created by the negligence of the defendant, proceeds voluntarily to confront it, as when he or she has been provided with an article that the plaintiff knows to be hazardous and continues to use after the danger has been detected. If this is a voluntary choice, the plaintiff is deemed to have accepted the situation and assented to free the defendant of all obligations.

In all three situations, the plaintiff might be acting in a reasonable manner and not be negligent in the venture, because the advantages of his or her conduct outweigh the peril. The plaintiff's decision might be correct, and he or she might even act with unusual circumspection because he or she is cognizant of the danger that will be encountered. If that is the case, the defense operates to refute the defendant's negligence by denying the duty of care that would invoke this liability, and the plaintiff does not recover because the defendant's conduct was not wrongful toward the plaintiff.

With respect to the second and third situations, however, the plaintiff's conduct in confronting a known risk might be in itself unreasonable, because the danger is disproportionate to the advantage the plaintiff is pursuing, as when, with other transportation available, the individual chooses to ride with an intoxicated driver. If this occurs, the plaintiff's conduct is a type of contributory negligence, an act or omission by the plaintiff that constitutes a deficiency in ordinary care, which concurs with the defendant's negligence to comprise the direct or proximate cause of injury. In such cases, the defenses of assumption of risk and contributory negligence overlap.

In this area of intersection, the courts have held that the defendant can employ either defense or both. Since ordinarily either is sufficient to bar the action, the defenses have been distinguished on the theory that assumption of risk consists of awareness of the peril and intelligent submission to it, while contributory negligence entails some deviation from the standard of conduct of a reasonable person, irrespective of any remonstration or unawareness displayed by the plaintiff. The two concepts can coexist when the plaintiff unreasonably decides to incur the risk or can exist independently of each other. The distinction, when one exists, is likely to be one between risks that were in fact known to the plaintiff and risks that the individual merely might have discovered by the exercise of ordinary care.

Express Agreement

The parties can enter into a written agreement absolving the defendant from any obligation of care for the benefit of the plaintiff and liability for the consequence of conduct that would otherwise constitute negligence. In the ordinary case, public policy does not prevent the parties from contracting in regard to whether the plaintiff will be responsible for the maintenance of personal safety. A person who enters into a lease or rents an animal, or enters into a variety of similar relations entailing free and open bargaining between the parties, can assent to relieving the defendant of the obligation to take precautions and thereby render the defendant free from liability for negligence.

The courts have refused to uphold such agreements, however, if one party possesses a patent disadvantage in bargaining power. For example, a contract exempting an employer from all liability for negligence toward employees is void as against public policy. A carrier transporting cargo or passengers for hire cannot evade its public responsibility in this manner, even though the agreement limits recovery to an amount less than the probable damages. The contract has been upheld, however, when it represents a realistic attempt to assess a value as liquidated or ascertained damages in advance, and the carrier graduates its rates in accordance with such value, so that complete protection would be available to the plaintiff upon paying a higher rate. The same principles apply to innkeepers, public warehousemen, and other professional bailees—such as garage, parking lot, and check-room attendants—on the basis that the indispensable necessity for their services deprives the customer of all meaningful equal bargaining power.

An express agreement can relieve the defendant from liability for negligence only if the plaintiff comprehends its terms. If the plaintiff is not cognizant of the provision in his or her contract, and a reasonable person in the same position would not have known of it, it is not binding upon the individual, and the agreement fails for lack of mutual assent. The expressed terms of the agreement must apply to the particular misconduct of the defendant. Such contracts generally do not encompass gross, willful, wanton, or reckless negligence or any conduct that constitutes an intentional tort.

Implied Acceptance of Risk

In a majority of cases, the consent to assume the risk is implied from the conduct of the plaintiff under the circumstances. The basis of the defense is not contract, but consent, and it is available in many cases in which no express agreement exists.

By entering voluntarily into any relationship or transaction in which the negligence of the defendant is evident, the plaintiff is deemed to accept and consent to it, to assume responsibility for personal safety, and to unburden the defendant of the obligation. Spectators at certain sports events assume all the known risks of injury from flying objects. Plaintiffs who enter business premises as invitees and detect dangerous conditions can be deemed to assume the risks when they continue voluntarily to encounter them.

Knowledge of Risk

The plaintiff will not normally be regarded as assuming any risk of either conditions or activities of which he or she has no knowledge. The plaintiff must not merely create the danger but must comprehend and appreciate the danger itself.

The applicable standard is basically subjective in nature, tailored to the particular plaintiff and his or her situation, as opposed to the objective standard of the reasonable person of ordinary prudence, which is employed in contributory negligence. If because of age, lack of information, or experience, the plaintiff does not comprehend the risk entailed in a known situation, the individual will not be regarded as consenting to assume it. Failure to exercise ordinary care to discover the danger is not encompassed within assumption of risk, but in the defense of contributory negligence.

An entirely subjective standard, however, allows the plaintiff considerable latitude in testifying that he or she did not know or comprehend the risk. To counteract the adverse effects of the application of this liberal standard, courts have interjected an objective element by holding that a plaintiff cannot evade responsibility by alleging that he or she did not comprehend a risk that must have been obvious.

A denial of cognizance of certain matters that are common knowledge in the community is not credible, unless a satisfactory explanation exists. As in the case of negligence itself, there are particular risks that any adult must appreciate, such as falling on ice, lifting heavy objects, and driving a defective vehicle. In addition, a plaintiff situated for a considerable length of time in the immediate vicinity of a hazardous condition is deemed to have detected and to comprehend the ordinary risks entailed in that situation. If the person completely understands the risk, the fact that he or she has temporarily forgotten it does not provide protection.

Even when there is knowledge and appreciation of a risk, the plaintiff might not be prohibited from recovery when the circumstances introduce a new factor. The fact that the plaintiff is totally cognizant of one risk, such as the speed of a vehicle, does not signify that he or she assumes another of which he or she is unaware, such as the intoxication of the driver.

Although knowledge and understanding of the risk incurred are encompassed within the concept of assumption of the risk, it is possible for the plaintiff to assume risks of whose specific existence he or she is unaware—to consent to venture into unknown conditions. In a majority of instances, the undertaking is express, although it can arise by implication in a few cases. A guest who accepts a gratuitous ride in an automobile has been regarded as assuming the risk of defects in the vehicle, unknown to the driver.

Voluntary Assumption

The doctrine of assumption of risk does not bar the plaintiff from recovery unless the individual's decision is free and voluntary. There must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. A risk is not viewed as assumed if it appears from the plaintiff's words or from the circumstances, that he or she does not actually consent. If the plaintiff relinquishes his or her better judgment upon assurances that the situation is safe or that it will be remedied or upon a promise of protection, the plaintiff does not assume the risk, unless the danger is so patent and so extreme that there can be no reasonable reliance upon the assurance.

Even when the plaintiff does not protest, the risk is not assumed when the conduct of the defendant has provided the individual with no reasonable alternative, causing him or her to act under duress. When the defendant creates a peril, such as a burning building, those who dash into it to save their own property or the lives or property of others do not assume the risk when the alternative is to permit the threatened injury to occur. If, however, the danger is disproportionate to the value of the interest to be protected, the plaintiff might be charged with contributory negligence in regard to his or her own unreasonable conduct. When a reasonably safe alternative exists, the plaintiff's selection of the hazardous route is free and can constitute both contributory negligence and assumption of risk.

The defendant has a legal duty, which he or she is not at liberty to refuse to perform, to exercise reasonable care for the plaintiff's safety, so that the plaintiff has a parallel legal right to demand that care. The plaintiff does not assume the risk while using the defendant's services or facilities, notwithstanding knowledge of the peril, when he or she acts reasonably, and the defendant has provided no reasonable alternative other than to refrain completely from exercising the right. A common carrier or other public utility which has negligently furnished a dangerously defective set of steps cannot assert assumption of risk against a patron who uses the steps as the sole convenient means of access to the company's premises. The same principle applies to a city maintaining a public roadway or sidewalk or other public area that the plaintiff has a right to use and premises onto which the plaintiff has a contractual right to enter. When a reasonable alternative is available, the plaintiff's recalcitrance in unreasonably encountering danger constitutes contributory negligence, as well as assumption of risk.

Violation of Statute

The plaintiff still assumes the risk where the defendant's negligence consists of the violation of a statute. A guest who accepts a nighttime ride in a vehicle with inoperative lights has been regarded as consenting to relieve the defendant of the duty of complying with the standard established by the statute for protection and cannot recover for injuries. Particular statutes, however, such as child labor acts and safety statutes for the benefit of employees, safeguard the plaintiff against personal inability to protect himself or herself due to improvident judgment or incapability to resist certain pressures. Since the basic objective of such statutes would be frustrated if the plaintiff were allowed to assume the risk, it is generally held that the plaintiff cannot do so, either expressly or impliedly.

Abolition of the Defense

Numerous states have abrogated the defense of assumption of risk in automobile cases through the enactment of no-fault insurance legislation or comparative negligence acts. The theories underlying its abolition are that it serves no purpose that is not completely disposed of by the other doctrines, it increases the likelihood of confusion, and it bars recovery in meritorious cases.

Assumption of risk is not a defense under state workers' compensation laws or in federal employer's liability act actions. The workers' compensation laws abolished the defense in recognition of the severe economic pressure a threatened loss of employment exerted upon workers. A worker was deemed to have assumed the risk even when acting under a direct order that conveyed an explicit or implicit threat of discharge for insubordination.

The federal Employers' Liability Act (45 U.S.C.A. § 51 et seq. [1908]) was intended to furnish an equitable method of compensation for railroad workers injured within the scope of their employment. The act provides that an employee is not deemed to have assumed the risks of employment when injury or death ensued totally or partially from the negligence of the carrier's officers, agents, or employees, or from the carrier's violation of any statute enacted for the safety of employees, where the infraction contributed to the employee's injury or death. This doctrine was abolished because of the extreme hardship it imposed on workers in this dangerous line of employment.