parent nodes: assumption of risk | Negligence Torts | right to treatment
assumption of risk
A plaintiff is more likely barred by assumption of risk the better developed and more competitive the market in which he participates at his risk. A plaintiff is also more likely barred where the utility gained from the risky activity is more subjective or heterogenous (ex. NL for excessive noise at a rock concert).
A judge may prefer assumption of risk to a comparative negligence approach where the jury may not accurately apportion deterrence between the plaintiff and the defendant.
Express assumption of risk: contract
A potential plantiff can expressly assume the risk of injury from negligence through a contract. A contract, however, must expressly release the potential defendant from the risk that the defendant itself will be negligent in order to be effective. [Van Turyn v Zurich American Insurance].
A contract assuming risk of negligence by a potential plaintiff is more likely valid if it has consideration, [Anderson v Erie Ry] (NL when priest killed in accident after purchasing a ticket that gave a discount but waived liability). Contracts waiving liability for consideration are more likely valid where free-riding negligence by the potential defendant is prevented by the presence of others who have not waived risk ([Anderson], where most of the train's passengers had not waived), or where the defendant does not know whether the plaintiff has waived (cf [Tunkl], where doctors knew patient's condition, as well as L case where negligent doctor further injured plaintiff who had injured himself through drunken driving).
Assumption of risk contracts are less likely to be enforced where the defendant has written the contract, where the plaintiff is less likely to understand or read the contract, where the defendant holds a monopoly on its type of services, or where the defendant has greater bargaining power than plaintiff. [Tunkl v Regents of U California] (waiver unenforceable where patient injured by malpractice at public hospital).
Express assumption of risk may also be dictated by statute (ex. on skiing tickets in Colorado).
Doctrinal Definition
A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from the defendant's negligent or reckless conduct cannot recover for such harm, unless the agreement is invalid as contrary to public policy.
Comment J. Disparity of bargaining power. An express agreement for the assumption of risk will not, in general, be enforced where there is such disparity of bargaining power between the parties that the agreement does not represent a free choice on the part of the plaintiff. The basis for such a result is the policy of the law which relieves the party who is at such a disadvantage from harsh, inequitable, and unfair contracts which he is forced to accept by the necessities of his situation. The disparity in bargaining power may arise from the defendant's monopoly of a particular field of service, from the generality of use of contract clauses insisting upon assumption of risk by all those engaged in such a field, so that the plaintiff has no alternative possibility of obtaining the service without the clause; or it may arise from the exigencies of the needs of the plaintiff himself, which leave him no reasonable alternative to the acceptance of the offered terms.
(Rest 2d Torts 496b)
Primary assumption of risk: known or obvious characteristics of activity
A potential plaintiff can also "primarily" assume risk by knowingly taking place in a dangerous activity. A plaintiff is more likely to be barred from recovery where he assumes the risk as part of a paying occupation, [Cohen v MacIntyre] (NL where vet bit by dog) or where the dangers are known or obvious [Murphy v Steeplechase Amusement] (possible L where plaintiff may have been injured by fall onto hidden wood panel during amusement ride). A plaintiff is less likely to be barred where the defendant is clearly the least cost avoider. (Hendricks v Broderick) (L where one plaintiff shot another in a forest, mistaking him for a turkey).
A negligent person is not liable for injuries caused to official rescue personnel (such as NL for firefighters fighting a negligently started fire), on the grounds that (1) the public can better spread (and has made a public decision to spread) the cost of firefighting risk through taxes, etc., and (2) liability would discourage people from seeking rescue services, thus possibly spreading risk. Cf [Neighbarger v Irwin Industries] (L where private company's firefighters injured while fighting fire negligently started by a third party)
Primary assumption of risk defenses are more likely to arise where neither party is negligent.
Secondary assumption: voluntary exposure to others' negligent risk
A potential plaintiff can also "secondarily" assume risk by knowingly exposing himself to the risk of another's negligence. A plaintiff will be more likely to be barred by secondary assumption of risk where he has witnessed previous negligence and possible injury, or where he has a free choice of safer alternatives that he rejects. [Kennedy v Providence Hockey Club] (NL where plaintiff, a long-time fan, was injured by a puck in a seat that she knew to be more dangerous)
Secondary assumption of risk defenses are more likely to arise where both parties to the accident are negligent. Secondary AOR defenses are more likely to succeed where there are other, non-negligent injured parties whose recovery could deter the defendant, or where a slightly negligent plaintiff is a repeat player easily able to avoid the accident (NL for pro skater injured by badly-iced rink, where there are also non-pro children on rink)
[alias: primary assumption of risk]
[alias: express assumption of risk]
[alias: secondary assumption fo risk]
[alias: assumed the risk]
[alias: assume risk]