Also known as: assumption of the risk · assumes the risk · assumed the risk · assuming the risk · volenti non fit injuria · assumption of risk doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense that bars or limits a plaintiff's recovery when the plaintiff voluntarily encounters a known risk created by the defendant's conduct or condition. The defense requires actual awareness of the specific danger and a free choice to proceed despite it.
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Andre Antoine keeps a large guard dog on his rural property. Antonio Alvarado sees the dog and the posted warning signs but climbs the fence anyway to retrieve a lost ball. The dog bites Alvarado. Because Alvarado knew of the risk and chose to enter the enclosure, assumption of risk defeats his strict liability claim against Antoine.
Atlas Ventures operates a noisy factory next to Ariana Azizi's newly purchased home. Azizi inspected the property during daytime operations, learned of the nighttime schedule, and still bought the house. When she later sues for private nuisance, her prior knowledge and voluntary purchase constitute assumption of risk that defeats the claim.
Aaron Adams drives his truck at high speed on a winding mountain road while texting. Alfred Ashford, a passenger who knows Adams's habits, voluntarily rides along without protest. When an accident occurs, Ashford's decision to accept the known danger of reckless driving bars his recovery under assumption of risk.
An employee of Bradford Electric Light Co. suffers an on-the-job injury in New Hampshire. The company had filed the required declaration electing workers' compensation coverage. Because the employee accepted employment under a system that eliminated common-law defenses including assumption of risk, the election controls and the tort suit is barred.
Transatlantic Financing Corp. agrees to carry cargo for the United States via a route that later becomes unavailable due to unforeseen events. The contract contains no force-majeure clause shifting the risk. The carrier's decision to proceed with the voyage despite the known possibility of route disruption means it assumed the risk of extra costs.
A factory worker at Apex Dynamics uses a pneumatic tool that vibrates excessively. The worker receives repeated warnings about hand-arm vibration syndrome yet continues using the tool without protective equipment for months. When injury results, the worker's continued use after full awareness of the risk supports an assumption-of-risk defense.
Assumption of risk requires the plaintiff to have actual knowledge of the specific danger and to make a voluntary choice to encounter it. Contributory negligence focuses on whether the plaintiff failed to act as a reasonably prudent person would, regardless of actual knowledge. The two defenses are distinct even though both may bar recovery in some jurisdictions.
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Yes. The plaintiff's assumption of the risk of harm from the animal is a complete defense to strict liability. The defense applies when the plaintiff knowingly and voluntarily subjects himself to the danger posed by the animal.
…means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10. The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the…
…close to engaging in some inappropriate appellate fact finding, to-wit, that each of the parties did not intend a contract and assumed the risk “of what might happen.” I conclude that the analysis employed by Judge Short in the majority opinion of the court of appeals, Cohen v. Cowles Media Co. , 445 N.W.2d 248 (Minn.App.1989),…
…the Act. Failure to file such a declaration exposes the employer to a common law action of negligence in which the defenses of assumption of risk
…that a tenant who enters into a lease agreement with knowledge of any defect in the essential facilities cannot be said to have assumed the risk
…of Contracts , 53 Colum. L.Rev. 94, 98 n. 23 (1953), suggesting that foreseeability is properly used “as a factor probative of assumption of the risk
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Yes. In nuisance actions the plaintiff's assumption of risk operates as a defense to the same extent as in other tort actions. A plaintiff who purchases property with advance knowledge of an existing nuisance may be found to have assumed the risk.
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Yes. A plaintiff who assumes the risk arising from the defendant's reckless disregard of safety is barred from recovery. The defense remains available even though the defendant's conduct is more culpable than ordinary negligence.
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In many jurisdictions assumption of risk remains a complete bar when the plaintiff knowingly and voluntarily encounters the risk. Some states have merged the doctrine into comparative fault so that it merely reduces damages rather than barring recovery entirely.
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