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Sometimes, Comparative Negligence Includes “Assumption of the Risk”


As we discussed earlier in the month, the legal doctrine known as “assumption of the risk” states that a plaintiff’s right to recover damages from an otherwise negligent defendant may be reduced–or barred altogether–if the plaintiff “knowingly and voluntarily” accepted the risks associated with the (usually dangerous) activities that resulted in the plaintiff’s injuries.

Where an injured plaintiff:

1. Engaged in a dangerous activity, and

2. Understood and accepted the dangerous nature of the activity and the associated risks, and

3. Was injured in the course of the dangerous activity,

the plaintiff’s ability to recover may be reduced or even barred altogether.

15A12 Public Domain Hazard (Finland)


Originally, assumption of the risk was an independent concept, and barred the plaintiff’s recovery outright. In recent years, however, courts have also recognized  situations where assumption of the risk merges into, and is treated the same as, contributory negligence.

Primary assumption of the risk applies where the defendant’s actions did not breach any legal duty of care to the plaintiff, and therefore no negligence analysis applies. In these situations, the plaintiff’s assumption of the risk forms a complete bar to recovery of damages.

Secondary assumption of the risk applies when the defendant does breach a duty of care to the plaintiff, but the plaintiff encounters (and accepts) a known or discovered risk resulting from the defendant’s breach of duty. In these cases, the plaintiff’s acceptance of the risk becomes an issue of fact for the jury (or the judge, in a bench trial) rather than an absolute bar to recovery. Secondary assumption of the risk is generally considered applicable to damages calculations, similar to contributory negligence, rather than functioning as an absolute bar to all recovery.

In some cases, even secondary assumption of the risk may result in a full bar to the plaintiff’s recovery. However, this is a question which must be decided on a case-by-case basis, in light of applicable facts and circumstances.

Evaluation of the existence and legal consequences of assumption of the risk often involves complex legal analysis, and requires the assistance of an experienced attorney. Do not delay consulting with an attorney if you have been injured. Delay could compromise or injure your legal rights.


DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Negligence law and defenses are a complex legal topic, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal liability may differ, based on your individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney without delay.

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