Assumption of Risk

If the plaintiff expressly consents, or gives his implied consent, to the risk of harm, he is considered to have assumed the risk and is thus barred from any recovery for negligence. However, for every assumption of the risk defense, it must be shown that the plaintiff recognized and understood the particular risk involved and voluntarily faced that risk.

Assumption of the risk can be established by contract. Thus, where the relationship between the plaintiff and the defendant stems from a contract, the defendant can limit his liability by establishing the plaintiff’s assumption of the risk in advance through “exculpatory provisions.” For example:

Dave is an avid bungee jumper who goes jumping whenever he can. He has been planning a trip for several weeks to Schnipper’s Cliff. When Dave arrives at the cliff, the company organizing the trip gives him a contract to sign, explicitly stating that Dave understands the risks involved in bungee jumping and assumes all of those risks. Dave reads the contract and signs it. During Dave’s third jump, he is injured. In a suit against the company, Dave will be barred from recovery because he signed a contract in which he assumed the risks of jumping.

See Barnes v. N.H. Karting Association, 509 A.2d 151 (N.H. 1986).

However, in the absence of any contract, the issue is whether the plaintiff, by conduct alone, can be held to have voluntarily assumed a particular risk.

The plaintiff’s knowledge of danger and his voluntary choice to expose himself to it are measured subjectively. See Dillard v. Little League Baseball, 55 App. Div.2d 477 (1977). That is to say, it is measured by what the plaintiff personally was aware of and what the plaintiff personally intended to do. The reasonable man test is not used here. What we are concerned about is what went through this particular plaintiff's head. Therefore, in our previous example, even if Dave had not signed a contract assuming the risks, odds are that he would not be able to recover for any injuries because as an avid bungee jumper, is safe to assume that he knew the risks involved in jumping and voluntarily assumed them.

However, please note that there is no assumption of risk when the plaintiff does not comprehend the danger because of either age or inexperience. See Cote v. Palmer, 16 A.2d 595 (Conn. 1940). Further, while voluntary participation in a sporting event is considered assumption of the risk, participation in the sporting event is not considered assumption of the risk of an opponent flagrantly violating the rules of the event and causing serious injury.

It must be shown therefore that the plaintiff was aware of the particular risk by which he was injured. Showing that the plaintiff had a general knowledge of risk is not enough. Further, the plaintiff’s conduct must demonstrate that he voluntarily chose to face the risk involved. If it appears that the plaintiff’s decision was influenced either by necessity, force or fraud there is no assumption of the risk.

Finally, where the defendant’s negligence consists of a violation of a statute designed to protect a certain class of person, a plaintiff who is a member of that class is considered legally incapable of assuming the risk.