Also known as: assumption of risk theory · assumption of risk
Written by attorneys — see sources 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.
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.
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.
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.
3 common questions
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
On March 5, 1976, Patricia McDonough was robbed in Baltimore, Maryland. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch, and she saw the 1975 Monte Carlo moving slowly past her home. On March 16, police spotted a man who met McDonough's description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner Michael Lee Smith. The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home without obtaining a warrant or court order. The pen register revealed that on March 17 a call was placed from petitioner's home to McDonough's phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. The search revealed that a page in petitioner's phone book was turned down to the name and number of Patricia McDonough, which was seized. Petitioner was arrested, and McDonough identified him as the robber in a lineup on March 19. Petitioner was indicted for robbery in the Criminal Court of Baltimore. By pretrial motion, he sought to suppress all fruits derived from the pen register. The trial court denied the suppression motion. Petitioner waived a jury, and the case was submitted to the court on an agreed statement of facts. The pen register tape and the phone book were admitted into evidence against him. Petitioner was convicted and sentenced to six years. He appealed to the Maryland Court of Special Appeals, but the Court of Appeals of Maryland issued a writ of certiorari to the intermediate court and affirmed the judgment of conviction. The United States Supreme Court granted certiorari.
View caseAisha 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.
In late May 2001, respondent Scott Randolph and his wife Janet separated when Janet left their marital residence in Americus, Georgia, and went to stay with her parents in Canada, taking their son and some belongings. In July 2001, Janet returned to the Americus house with the child. On the morning of July 6, 2001, Janet complained to the police that after a domestic dispute her husband had taken their son away, and when officers reached the house she told them that her husband was a cocaine user whose habit had caused financial troubles. Shortly after the police arrived, Scott Randolph returned and explained that he had removed the child to a neighbor's house out of concern that his wife might take the boy out of the country again; he denied cocaine use, and countered that it was in fact his wife who abused drugs and alcohol. One of the officers asked Scott Randolph for permission to search the house, which he unequivocally refused. The sergeant then turned to Janet Randolph for consent to search, which she readily gave. She led the officer upstairs to a bedroom that she identified as Scott's, where the sergeant noticed a section of a drinking straw with a powdery residue he suspected was cocaine. Sergeant Murray left to get an evidence bag and called the district attorney's office, which instructed him to stop the search and apply for a warrant. When he returned, Janet Randolph withdrew her consent. The police took the straw to the police station along with the Randolphs. After obtaining a search warrant, they returned and seized further evidence of drug use, leading to Scott Randolph's indictment for possession of cocaine. He moved to suppress the evidence as the product of a warrantless search unauthorized by his wife's consent over his express refusal. The trial court denied the motion. The Georgia Court of Appeals reversed, and the Georgia Supreme Court affirmed. The United States Supreme Court granted certiorari.
View case1 common questions
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.
…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…