Also known as: assumed risk rule · assumed-risk doctrine · assumption of risk
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense that bars recovery when the plaintiff knowingly and voluntarily encounters a specific risk created by the defendant's conduct. The defense applies to the same extent in nuisance actions as in other tort claims. The defendant bears the burden of proving the plaintiff's assumption of risk.
Select any source to read its text and confirm it supports the definition.
Alice Atkins signed a waiver before entering a construction site owned by Apex Dynamics to photograph an ongoing project. The site featured an open trench that Apex had failed to cover despite local ordinances. Alice knowingly stepped around barriers to get a better angle and fell into the trench. Her nuisance suit against Apex for maintaining the hazardous condition fails because her signed agreement and deliberate conduct establish assumption of risk.
Adam Anderson purchased a vehicle from General Motors knowing its door latch design had been criticized in safety reports. While driving, the latch failed during a minor collision and Adam suffered injuries. In his strict products liability action, the jury applied assumption of risk after finding Adam had appreciated the specific danger and chose to drive anyway, reducing or barring recovery.
Anthony Arnold operated a loader manufactured by Lull Engineering despite visible instability in the lift mechanism that the company had not corrected. When the loader tipped during normal use, Anthony was injured and sued on a design defect theory. The court considered whether his continued operation after noticing the instability constituted assumption of risk that would defeat the claim.
Alan Ackerman continued smoking cigarettes manufactured by Liggett Group after reading package warnings about lung cancer risks. He later developed cancer and sued for failure to warn. The jury found that Alan had reasonably encountered a known danger by continuing to smoke and assigned him eighty percent of the responsibility for his injuries under assumption of risk principles.
Arthur Abrams and other smokers brought a class action against American Tobacco alleging fraudulent marketing. The court noted that assumption of risk and comparative fault would require individualized proof for each plaintiff because personal knowledge of the dangers varied widely among class members. This variation defeated class certification on those issues.
A signed waiver supports an express assumption of risk defense when it clearly identifies the risk and the plaintiff voluntarily agrees to accept it. Courts may refuse to enforce the waiver if it violates public policy, such as when a business attempts to disclaim liability for its own negligence in a setting where it controls safety. The outcome turns on the clarity of the language and the circumstances of execution.
Supporting sources
Continued use supports the defense only when the plaintiff fully appreciates the specific risk and voluntarily chooses to encounter it without reasonable alternatives. Economic pressure or lack of practical options can undermine voluntariness. In landlord-tenant settings, tenants who must use defective common areas often do not assume the risk because they lack a genuine choice.
…a buyer's actual knowledge of a warranty-breaching condition bars recovery on an express warranty claim under the doctrine of assumption of risk or contributory fault; and (3) it erroneously instructed the jury in several respects on the failure to warn claim, most significantly by failing to impose a but-for causation…
…unreasonably proceeded to encounter a known danger, then the plaintiff may not recover.” This instruction is a statement of the assumption of risk
…et al., The American Law op Torts §§ 18.31, 18:34-18:35 (Law Co-op 1996). Differences in affirmative defenses also exist. Assumption of risk
…not constitute a defense to a strict products liability action, plaintiff's negligence is a complete defense when it comprises assumption of risk
…defendants denied the allegations in the plaintiff's complaint and interposed the defenses of contributory negligence and assumption of risk
Supporting sources
In abnormally dangerous activity or wild animal cases, contributory negligence is not a defense, but voluntary and unreasonable assumption of risk can still bar recovery. The plaintiff must have knowingly and unreasonably subjected himself to the precise danger created by the activity. Courts weigh whether the plaintiff's conduct was truly voluntary given surrounding circumstances.
Supporting sources
The defendant must prove that the plaintiff assumed the risk. This includes showing the plaintiff's knowledge of the danger, appreciation of its magnitude, and voluntary choice to encounter it. Failure to meet this burden leaves the defense unavailable even if the facts suggest some awareness of hazard.
Supporting sources