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“Assumption of the Risk” in Negligence Cases

ASSUMPTION OF THE RISK IS A DEFENSE IN NEGLIGENCE ACTIONS

When applicable, the legal doctrine of “assumption of the risk” negates the defendant’s duty of care to the injured plaintiff, either entirely or in part. In circumstances where the doctrine applies, the defendant owes the plaintiff no legal duty, and thus is not generally held legally liable for the plaintiff’s injuries.

Assumption of the risk has many permutations, all of which are highly fact-specific.

“Primary assumption of the risk” generally applies when either:

(a) the relationship between the plaintiff (or defendant) and the activity that injured the plaintiff, or

(b) the nature of the activity itself,

create a situation where the defendant has no duty to protect the plaintiff against certain types of risk (generally, the type of risk inherent in the relevant activity). If the plaintiff is injured due to the risk (s)he has “assumed,” the defendant is not generally held liable, at least on a negligence theory.

Note: A defendant may still have legal liability to the injured plaintiff under a different legal theory or claim. 

In California, the primary assumption of the risk theory has been generally subsumed into the doctrine of “comparative fault” – but assumption of the risk still appears in certain contexts.

OCCUPATIONAL ASSUMPTION OF THE RISK MAY APPLY TO CERTAIN KINDS OF WORK-RELATED INJURIES

Assumption of the risk may also prevent people injured on the job from seeking recovery for work-related injuries, where the injuries were caused by inherent risks in the person’s profession. This is because defendant employers generally have no duty to protect employees (or contractors) against the very risks they were hired to deal with or confront.

For example: work as a firefighter includes an inherent risk of certain kinds of burns, as well as smoke and fire-related injuries. (In fact, occupational assumption of the risk is sometimes called the “Firefighter’s Rule”).

However, occupational assumption of the risk does not eliminate all employer liability for work-related injuries. Employers cannot increase the risks employees face, and cannot avoid liability for violation of other work-related safety and worker protection laws. Additionally, people do not automatically accept all risks of employment, and the occupational assumption of the risk doctrine is not a blanket catch-all for injuries incurred on the job.

If you are injured at work, always consult an attorney promptly for an evaluation of your personal rights and potential claims. Do not attempt to evaluate your rights on your own.

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Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Negligence claims are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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