Also known as: voluntary assumption of risk · assumption of risk
Written by attorneys · grounded in primary & secondary sources — see below
A tort defense that precludes recovery when the plaintiff has voluntarily and knowingly encountered a known risk of harm. The defense applies to the same extent in nuisance actions as in other tort claims.
Virgil Volpe purchased a home next to a rendering plant operated by Voss Shipping. Volpe noticed the strong odors on multiple visits before closing but completed the purchase anyway. When Volpe later sued Voss Shipping for private nuisance, the company raised voluntary assumption of the risk as a complete defense. The court treated the defense exactly as it would in any other tort action and barred recovery.
Veronica Villanueva accepted a ride from a friend who had been drinking heavily. She knew the driver was impaired yet chose to ride anyway. After a crash, Villanueva sued the driver. The court merged the implied assumption of risk defense into contributory negligence and applied comparative fault principles to reduce her recovery.
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Violet Vang smoked cigarettes for decades despite widespread public information about lung cancer. She later sued the manufacturer for personal injuries. The jury found that Vang had reasonably encountered a known danger by continuing to smoke and assigned her 80 percent of the responsibility for her injuries.
Valerie Viera purchased a car whose door latch later failed in a collision. She had not been wearing her seatbelt at the time. In her strict products liability action against the manufacturer, the court considered whether Viera's failure to buckle up constituted voluntary assumption of a known risk and reduced her damages accordingly under comparative fault rules.
Valentina Vasquez operated a loader whose safety features had been removed. She knew the loader could tip on uneven ground yet continued using it without the guards. After an injury, she sued the manufacturer. The court evaluated whether her continued operation amounted to voluntary assumption of a known risk that would limit recovery under the applicable strict liability standard.
In some jurisdictions the implied form of the defense merges into contributory negligence so that comparative fault principles apply instead of a complete bar. The Restatement treats assumption of risk as a defense to the same extent as in other tort actions, but courts may recharacterize it under comparative rules.
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The defendant must prove that the plaintiff voluntarily and knowingly encountered a known risk. This allocation appears in the Restatement provisions addressing assumption of risk as an affirmative defense.
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The defense is unavailable if allowing it would defeat the statute's policy of placing full responsibility on the defendant. Otherwise the defense may still apply to statutory violations.
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Courts have considered the defense in products cases but often fold it into comparative fault analysis rather than allowing a complete bar. The jury may reduce damages when the plaintiff knowingly used a product despite awareness of the danger.
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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…