Torts II

Assumption of Risk

A plaintiff can assume the risk for his actions, thereby removing liability from the defendant. They can do this expressly or implicitly.

Express Assumption of Risk

In determining whether a plaintiff expressly assumed a risk, there are issues:

  1. Whether the risk that injured the plaintiff fell within the unambiguous terms of the agreement
  2. Whether the contract violates public policy

Gross negligence will also still make an express assumption of risk unenforceable.

Implied Assumption of Risk

Implied assumption of risk requires:

  1. Actual knowledge of the particular risk
  2. Appreciation of its magnitude
  3. Voluntary encountering of the risk

Some jurisdictions have merged implied assumption of risk into the defense of contributory negligence and the principles of comparative negligence.

Open and Obvious Danger

In some states, when a danger is open and obvious, a person assumes the risk of harm when he deliberately chooses to encounter the risk.

A majority of states have eliminated open and obvious danger as a bar to recovery and have the jury consider it as a factor in the larger comparative negligence analysis.