Also known as: calculated risks · calculate risk · calculating risk · assumption of risk
Written by attorneys · grounded in primary & secondary sources — see below
A deliberate choice to engage in conduct despite awareness of a substantial possibility that harm or loss will result. The concept treats the ensuing damage as a normal or foreseeable consequence of the chosen action rather than an accident.
Crestview Holdings built a lagoon on its property without first condemning an adjacent parcel or arranging an alternative water supply. When the lagoon contaminated a neighbor's well, the neighbor sued in nuisance. Because the neighbor had known of the construction plans and chosen to continue using the well anyway, the court treated the neighbor's conduct as assumption of risk and barred recovery.
City of Carter Lake constructed a lagoon without first securing additional property rights or alternative water sources for a nearby parcel. When the lagoon contaminated the neighboring well, the city sought coverage under its liability policy for damage caused by accident. The court held that the city had taken a calculated business risk, so the contamination was a foreseeable result rather than an accident and coverage was denied.
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When an insured deliberately proceeds with conduct despite foreseeing a substantial chance of loss, courts often treat the resulting damage as a normal or foreseeable consequence rather than an accident. The loss is therefore excluded from coverage under policies that require an accidental occurrence.
Yes. Under the governing rule, a plaintiff's assumption of risk serves as a complete defense in a nuisance action to the same extent it would in any other tort action.
The defendant bears the burden of proving that the plaintiff voluntarily and unreasonably subjected himself to the risk of harm.