Also known as: assumption of inherent risks · assumes inherent risk · assumed inherent risk · assumption of risk · inherent risk doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense barring recovery when a plaintiff voluntarily encounters a known danger inherent in an activity or condition. In an action for nuisance the plaintiff's assumption of risk is a defense to the same extent as in other tort actions.
Albert Allen purchased a home next to an established horse stable operated by Artemis Logistics. Allen knew the stable produced strong odors and noise from the animals but moved in anyway. When Allen later sued the stable for private nuisance, the court applied assumption of inherent risk and barred recovery because Allen had voluntarily encountered the known dangers of equine activities.
Audrey Ashton sued a tobacco company after developing lung cancer from decades of smoking. Evidence showed she had long known the health risks of cigarettes yet continued the habit. The jury found that Ashton had assumed the inherent risk of smoking and barred recovery.
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Assumption of inherent risk focuses on the plaintiff's voluntary encounter with a known danger created by the activity itself. Contributory negligence examines whether the plaintiff failed to exercise reasonable care. In nuisance actions the assumption defense applies to the same extent as in other torts.
Supporting sources
The defendant must prove that the plaintiff assumed the risk. This allocation follows the general rule that the party asserting the defense carries the burden of proof.
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No. When harm results from intentional conduct or recklessness, assumption of risk does not serve as a defense. The rule parallels the treatment of contributory negligence in those circumstances.
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Only if the plaintiff voluntarily and unreasonably subjected himself to the risk. Mere knowledge of the activity is insufficient to trigger the defense.
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…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…