Express Assumption of Risk

Definition

Express assumption of risk is a defense in tort law that arises when a plaintiff explicitly agrees to accept the risks associated with a particular activity or situation. This term is particularly relevant in the contexts of product liability and strict liability, where the plaintiff's voluntary acceptance of known risks can impact their ability to recover damages.

5 Must Know Facts For Your Next Test

1. Express assumption of risk requires the plaintiff to have actual knowledge of the specific risk and voluntarily accept it.
2. The defendant bears the burden of proving that the plaintiff expressly assumed the risk, which is a high standard to meet.
3. Express assumption of risk is a complete defense, meaning it can bar the plaintiff's recovery entirely if successfully established.
4. In product liability cases, the plaintiff's express agreement to use a product with known risks may preclude their ability to recover damages.
5. Strict liability claims, such as those for defective products, can be defeated by the express assumption of risk defense.

Review Questions

• Explain how the express assumption of risk defense can impact a plaintiff's ability to recover damages in a product liability case.
  • In a product liability case, if the defendant can establish that the plaintiff expressly agreed to accept the known risks associated with using the product, the express assumption of risk defense can completely bar the plaintiff's recovery. This is because the plaintiff's voluntary acceptance of the risks negates the defendant's liability, even if the product was defective. The defendant must prove that the plaintiff had actual knowledge of the specific risks and nonetheless chose to proceed with the activity or use the product.
• Describe the key differences between express assumption of risk and contributory negligence as defenses in tort law.
  • The key difference between express assumption of risk and contributory negligence is the plaintiff's level of awareness and voluntariness. Express assumption of risk requires the plaintiff to have actual knowledge of the specific risks and to have voluntarily accepted them, whereas contributory negligence only requires the plaintiff to have failed to exercise reasonable care for their own safety. Additionally, express assumption of risk is a complete defense that can bar the plaintiff's recovery entirely, while contributory negligence typically only reduces the plaintiff's recovery in proportion to their degree of fault.
• Analyze how the express assumption of risk defense might impact a plaintiff's ability to recover damages in a strict liability claim.
  • In a strict liability claim, such as for a defective product, the express assumption of risk defense can be a significant obstacle to the plaintiff's recovery. Strict liability does not require the plaintiff to prove the defendant's negligence; however, if the defendant can establish that the plaintiff expressly agreed to accept the known risks associated with the product, this can negate the defendant's liability entirely. The plaintiff's voluntary acceptance of the risks undermines the rationale for strict liability, which is to hold the defendant accountable regardless of fault. Therefore, the express assumption of risk defense can be a complete bar to the plaintiff's recovery in a strict liability case.

Related terms

Implied Assumption of Risk: Implied assumption of risk is a defense that applies when the plaintiff's conduct implies an understanding and acceptance of the risks involved, even without an explicit agreement.

Contributory Negligence: Contributory negligence is a defense that reduces or bars the plaintiff's recovery if their own negligence contributed to the injury or damages.

Comparative Fault: Comparative fault is a legal doctrine that apportions liability between the plaintiff and defendant based on their relative degrees of fault.