Assumption of Risk

Assumption of risk is an affirmative defense in tort law that bars or reduces recovery by a plaintiff against a negligent defendant when the defendant shows the plaintiff voluntarily accepted the known risks of a dangerous activity. Primary assumption of risk arises when a plaintiff knows of a specific risk and accepts it through words or conduct, which relieves the defendant of a duty of care altogether, so that, for example, a skier who is injured by the ordinary risks of skiing generally cannot sue the resort absent some additional negligence. Secondary assumption of risk instead arises when the defendant still owes a duty of reasonable care but the plaintiff knowingly proceeds in the face of the negligence of the defendant, which in jurisdictions that use comparative negligence becomes a factor in apportioning fault rather than a complete bar to recovery. The defense can be express, through a written or oral waiver, or implied, from the conduct of the plaintiff, though courts often refuse to enforce a general waiver that does not specifically identify the risk that caused the injury, and an express waiver cannot excuse reckless conduct by a defendant, only ordinary negligence.