Assumption of risk

In plain English: assumption of risk is a defence that says you knew about a particular danger and chose to accept it, so the other side shouldn't have to pay when that danger caused your injury. In the UK and Canada the same idea is usually called volenti non fit injuria, or just volenti.

The forms it takes in the US

• Express assumption of risk. You agreed in writing, usually through a waiver or release before an activity like skydiving, a trampoline park or a ski rental.
• Primary implied assumption of risk. Some risks are part of the activity itself. A spectator hit by a foul ball or a skier who falls on a normal slope may have no claim because there was no duty to remove that risk.
• Secondary implied assumption of risk. You knowingly faced a risk the defendant created carelessly. Many states now fold this into comparative negligence, reducing your award rather than wiping it out.

Several states also have recreation statutes, for example for skiing or equestrian activities, that limit claims for inherent risks. Rules differ, so check your state.

Waivers are not bulletproof

People often assume that signing a waiver ends any claim. It frequently doesn't. Courts in many places refuse to enforce waivers that are unclear, buried in small print, or that try to excuse gross negligence or deliberate conduct. A waiver covering the normal risks of rock climbing may not cover a gym that ignored a frayed rope.

In the UK, a business generally cannot exclude liability for death or personal injury caused by its negligence. The Unfair Contract Terms Act 1977 and, for consumers, the Consumer Rights Act 2015 make such terms ineffective.

Car passengers

A common question is whether getting into a car with a driver you knew had been drinking counts. In the UK, section 149 of the Road Traffic Act 1988 stops volenti being used against passengers in motor vehicle claims, but your compensation can still be reduced for contributory negligence. In US states, the same facts are usually treated as comparative fault rather than a complete bar.

What to do if it's raised against you

1. Get a copy of anything you signed, including the date and version.
2. Write down what you were told about the risks, and what you weren't.
3. Photograph the equipment, signage and conditions if you can.
4. Get legal advice before accepting a denial based on the waiver.

Next: duty of care · contributory negligence · comparative vs contributory negligence.

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