Also known as: assumption of risk theory · assumption of risk
Written by attorneys · grounded in primary & secondary sources — see below
2 senses
An affirmative defense that bars a plaintiff's recovery when the plaintiff knowingly and voluntarily accepts a specific risk of harm from the defendant's conduct. The defense applies to the same extent in nuisance actions as in other tort actions.
An affirmative defense that bars a plaintiff's recovery when the plaintiff knowingly and voluntarily accepts a specific risk of harm from the defendant's conduct. The defense applies to the same extent in nuisance actions as in other tort actions.
Select any source to read its text and confirm it supports the definition.
A theory under which a person who shares access to or control over premises or information is deemed to have accepted the risk that a cohabitant or third party will permit inspection or disclosure to authorities.
Select any source to read its text and confirm it supports the definition.
A theory under which a person who shares access to or control over premises or information is deemed to have accepted the risk that a cohabitant or third party will permit inspection or disclosure to authorities.
Each sense below has its own examples, sources, and questions.
Adrian Aguilar purchased a home next to an Aether Technologies plant that emitted constant industrial noise. He was aware of the noise before buying and continued living there for years without complaint. When Aguilar later sued for private nuisance, the court applied assumption of risk to bar recovery because he had knowingly and voluntarily accepted the precise risk created by the plant's operations.
Yes. The Restatement provides that in an action for nuisance the plaintiff's assumption of risk is a defense to the same extent as in other tort actions.
Supporting sources
The plaintiff must fully understand the specific risk and voluntarily choose to encounter it under circumstances showing willingness to accept it.
Supporting sources
A signed waiver can establish the defense if it clearly states the risks assumed and is not contrary to public policy, but courts examine whether the agreement is enforceable under local standards.
Supporting sources
Anthony Arnold placed calls using his home telephone and knew the company recorded numbers for billing. When police obtained the records without a warrant, Arnold claimed a Fourth Amendment violation. The assumption-of-risk theory defeated the claim because Arnold had accepted that the company could disclose the information to authorities.
Aisha Ahmed shared an apartment with her roommate. When police arrived and the roommate consented to a search of the common living room, Ahmed objected from the doorway. Under the assumption-of-risk theory the consent was valid because Ahmed had accepted that a cohabitant could permit inspection of shared spaces.
A cohabitant with joint access is understood to have authority to consent, and the other cohabitants are taken to have assumed the risk that the cohabitant will permit the search.
Supporting sources
…to the government. Ante , at 744, 745. This analysis is misconceived in two critical respects. Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had…