Also known as: assumption of risk · assumes the risk · assumed the risk · assuming the risk · assumption of risk doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense that bars recovery when the plaintiff knowingly and voluntarily encounters a known danger created by the defendant. The defense requires proof that the plaintiff had actual knowledge of the specific risk and chose to proceed despite that knowledge.
Arthur Abrams crawls under a rope at a circus and stands inches from a caged bear. The bear reaches through the bars and injures him. The circus raises assumption of the risk. Because Abrams knowingly approached the obvious danger of the caged animal, the defense bars his strict-liability claim.
Angela Acosta buys a home next to an operating factory that emits loud noise and smoke. She sues the factory for private nuisance. The factory asserts assumption of the risk. Because Acosta purchased the property with full knowledge of the ongoing interference, the defense defeats her claim to the same extent it would in other tort actions.
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Ariana Azizi accepts a ride from her supervisor who is visibly intoxicated and drives at high speed. The car crashes and Azizi is injured. She sues the supervisor for recklessness. The supervisor raises assumption of the risk. Because Azizi knowingly accepted the specific danger of riding with a reckless driver, the defense bars recovery.
Alice Atkins charters a vessel for a voyage that both parties expect will use the usual route. An unforeseen closure forces a longer detour. Atkins claims the carrier assumed the risk of the longer route. Because the parties' agreement allocated that risk to the carrier, the defense prevents the carrier from shifting the added cost to Atkins.
Atlas Ventures agrees to supply jet fuel at a fixed price despite knowing that market prices could spike. When prices rise sharply, Atlas seeks to avoid performance. The buyer claims Atlas assumed the risk of price increases. Because the contract allocated that market risk to Atlas, the defense defeats the claim of commercial impracticability.
Alliance Holdings ships a hazardous chemical by rail. A leak occurs during transit and damages nearby property. The railroad sues for damages. Alliance claims the railroad assumed the risk by accepting the shipment. Because the parties' arrangement placed the risk of this type of release on the shipper, the defense bars the railroad's recovery.
No. The defense requires only that the plaintiff know the specific risk and voluntarily choose to encounter it. Actual knowledge of the precise degree of harm is not necessary.
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Assumption of the risk focuses on the plaintiff's actual knowledge and voluntary choice to encounter a known danger. Contributory negligence focuses on whether the plaintiff failed to exercise reasonable care.
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Yes. The plaintiff's assumption of the risk of harm from an animal is a defense to the possessor's strict liability under Restatement (Second) of Torts § 515(3).
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Yes. In nuisance actions the defense applies to the same extent as in other tort actions under Restatement (Second) of Torts § 840C.
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Yes. A plaintiff who assumes the risk arising from the defendant's reckless disregard of safety is barred from recovery under Restatement (Second) of Torts § 503(4).
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…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…