Assumption of risk is a defense in tort actions for personal injury. This defense may act as a total bar to recovery for a plaintiff. It is an affirmative defense, meaning that a defendant who asserts this must put forth evidence proving the validity of the defense. Thus, it is important for plaintiffs to understand instances in which they may be consenting to tortious acts. It is important to seek local counsel on the matter as the laws of how liability is determined for negligence vary from state to state. Illinois has adopted comparative negligence, whereby a plaintiff is completely barred from recovery if their negligence is 51% or more for a given situation.
One way to prevent a plaintiff from recovery for damages is if both parties agree in advance that the defendant owes the plaintiff no legal duty. In many instances, an agreement is signed stating this. This is known as an express assumption of risk. An example of this includes a waiver for participating in sporting events. The plaintiff will not recover unless the defendant acted in a willful, wanton, or reckless manner or if the release goes against public policy concerns. Court in Illinois generally do not favor such releases and will interpret the facts in favor of the plaintiff.
Another aspect to the doctrine is for the assumption of risk to be implied. It can be primary or secondary. Primary instances occur where the risk is not created by the defendants but rather inherent in the activity itself. One example of this is those who injure themselves while snow tubing at a resort. This activity has dangers inherent that are not created by the resort. Thus, when one undertakes such an activity it is assumed that they do so knowing that the risk of hitting other participants and uneven surfaces can cause injury. Secondary risks occur when a plaintiff implicitly assumes a risk created by the defendant. In this situation, the negligence of the defendant created the risk but the plaintiff assumes it anyway with full knowledge of the circumstances. It is not a complete bar to recovery but Illinois will apply comparative negligence to the situation.
There is also an assumption of risk for strict liability torts, which can be found in products liability cases. In order for a plaintiff to be barred from recovery, a plaintiff would have to know the dangers of using a product but proceeds to use it anyway. In order to determine if a risk was assumed, a court would weigh various factors including the knowledge, experience, age, and any other relevant facts about the plaintiff to determine if there was an ability to appreciate the risk that was taken.
This article is for informational purposes only and is not to be construed as legal advice. Your case may be different. Hiring an attorney immediately will protect your rights. Consult an attorney in your area for further guidance.