Assumption of Risk in Personal Injury Lawsuits

Assumption of risk arises in situations in which an individual voluntarily engages in an activity or enters an environment despite knowing there is a chance of injury. In personal injury law, this concept can limit or prevent an injured person from recovering compensation if a court finds that the injured person understood the risk and agreed to take it.

Two central elements define this rule. First, the person must have a genuine awareness of a specific hazard. Second, that person must make a free and deliberate choice to proceed, even with knowledge of potential harm. If a defendant can show both factors, a court may rule that the injured person should have their recovery for injuries arising from that hazard reduced or barred, depending on the jurisdiction and the circumstances.

Express vs. Implied Assumption of Risk

Express assumption of risk occurs when the individual explicitly agrees to face a known danger, often through a written agreement or waiver. Common examples include signing a form before participating in sports or recreational activities that carry inherent dangers, such as rock climbing or skydiving. These agreements generally list the potential harms and contain language stating that the participant will not seek damages if an injury occurs.

Implied assumption of risk focuses on the injured person’s behavior and the broader context rather than on a specific document or statement. Courts examine whether someone’s conduct clearly indicates acceptance of a danger. For example, an individual who attends a baseball game in an area where foul balls frequently and predictably land may be found to have impliedly assumed the risk of being struck by a ball if that injury takes place.

Primary and Secondary Assumption of Risk

Primary assumption of risk generally involves circumstances in which the defendant owes no legal duty to protect against certain inherent dangers of an activity. In these cases, the nature of the activity itself places participants on notice that harm may occur, and the law may find there was no obligation to remove or reduce that core risk. However, defendants often still owe a duty not to increase the inherent risks of the activity or act with recklessness.

Secondary assumption of risk arises when a defendant has some level of duty to the plaintiff, yet the plaintiff knowingly encounters a threat anyway. If a store places a clear and conspicuous warning sign near a hazardous condition, and a patron reads it but still proceeds, this might constitute a secondary assumption of risk. The store’s duty to maintain safe premises remains, but the patron’s decision to continue in spite of the warning can diminish or eliminate recovery. The effectiveness of the warning and the reasonableness of the patron's choice are often important factors in deciding whether the doctrine applies.

Examples of Applications

Assumption of risk is frequently raised as a defense in premises liability lawsuits when clear warnings are posted, such as signs indicating hazardous conditions. Stores, businesses, and property owners sometimes rely on assumption of risk if they can show that an injured individual identified the dangerous condition, understood its seriousness, and still chose to encounter it. It also may appear in recreational and sports-related cases, where organizers often argue that participants recognized and accepted inherent dangers.

Limits and Exceptions

Assumption of risk requires proof that the injured person knowingly faced the exact danger that led to the harm. If the evidence indicates that the person did not appreciate the full scope of the hazard, the defense may fail. Courts may assess whether the particular risk was a natural part of the activity, known to the plaintiff, and accepted in a manner consistent with a genuine, voluntary choice.

Courts may invalidate express waivers that are overly broad, vague, or contrary to public policy. Also, assumption of risk generally does not shield a defendant who engages in excessively reckless behavior or intentional misconduct.

Last reviewed April 2025