Assumption Of Risk

A.

Generally If the plaintiff had knowledge of and voluntarily assumed an unreasonable risk that the defendant created, the plaintiff is barred from any recovery. There are two types of assumption of risk:

1. Express Assumption of Risk The plaintiff may explicitly agree with the defendant, in advance of being injured, not to hold the defendant liable for any injuries. Express agreements will be enforced unless they are contrary to public policy. Public policy issues to consider:

a. The relative bargaining power of the plaintiff and the defendant.
Whether the waiver of liability was apparent to the plaintiff, or would have been apparent to a reasonable person.
The scope of the waiver, e., a waiver of liability for negligence will not waive liability for grossly negligent or intentionally tortious conduct.

2. Implied Assumption of Risk Even in the absence of an express agreement, a plaintiff can still assume the risk if:

a.
the plaintiff knows of the risk, and

b.
the plaintiff’s actions imply a voluntary assumption of the risk.

Examples:

a.
Spectators are held to impliedly assume certain risks when they go to a sporting event and are injured as a natural and foreseeable result of the sport.
Firefighters and police officers cannot sue for injuries sustained in their lines of work since they knowingly and voluntarily undertake the risk.

B.

Limitation on Assumption of Risk