Torts II

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.