Also known as: assumption of risk defense · assumption of risk · assumption of risk doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense that bars a plaintiff's recovery when the plaintiff voluntarily and knowingly encounters a danger 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 defense.
Alice Atkins purchased a home next to an industrial plant operated by Aurora Biotech. She noticed strong chemical odors and vibrations immediately after moving in but continued living there for two years while complaining to neighbors. When Alice sued Aurora for private nuisance, Aurora raised the assumption-of-risk defense. The court barred recovery because Alice had voluntarily remained on the property with full knowledge of the ongoing interference.
Austin Abbott agreed to ride as a passenger in a high-speed street race organized by Alexis Archer. Austin knew the route included sharp curves and heavy traffic yet chose to participate anyway. When the car crashed and Austin was injured, he sued Alexis for negligence. The assumption-of-risk defense prevented recovery because Austin had knowingly accepted the specific hazards of the race.
Select any source to read its text and confirm it supports the definition.
Alfred Ashford smoked cigarettes for thirty years despite repeated public warnings about lung cancer. He later developed cancer and sued the manufacturer. The jury found that Alfred had assumed the risk by continuing to smoke after learning of the danger. The assumption-of-risk defense reduced or eliminated his recovery on the negligence claim.
Anika Anand operated a loader whose raised arms created an obvious crushing hazard. She was fully aware of the risk yet reached under the arms without blocking them. When the arms fell and injured her, she sued the manufacturer for defective design. The assumption-of-risk defense barred recovery because Anika had voluntarily encountered a known and obvious danger.
Members of a proposed class had smoked for decades while fully aware of the health risks publicized by health authorities. They sued tobacco companies seeking damages for addiction and disease. The assumption-of-risk defense was available to defeat claims by class members who knowingly continued smoking after learning of the dangers. Individual issues of voluntary risk acceptance therefore predominated.
Audrey Ashton purchased a car knowing it lacked shoulder harnesses. She was injured in a collision and sued the manufacturer. The assumption-of-risk defense applied because Audrey had knowingly accepted the increased danger created by the missing restraint system. Her recovery was accordingly reduced or barred.
Yes. Courts have held that the assumption-of-risk defense continues to operate as a complete bar even after comparative negligence is adopted, because the plaintiff's knowing and voluntary acceptance of a specific risk removes the defendant's duty or constitutes consent.
Supporting sources
The defense applies when the plaintiff is subjectively aware of the specific danger, appreciates its magnitude, and voluntarily proceeds to encounter it. Mere awareness of a general risk is insufficient. The plaintiff must have actual knowledge of the particular hazard that caused the injury.
Supporting sources
Yes. Continued use after receiving clear warnings about the precise danger can establish that the plaintiff voluntarily assumed the risk, barring or reducing recovery in both negligence and strict products liability claims.
Supporting sources
…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…