Assumption of Risk

The doctrine of assumption of the risk is dependent onto the comparative negligence rule. On the other hand, primary assumption of risk in which arises when a plaintiff voluntarily participates in an activity that is not merged in the comparative negligence system. Primary assumption of the risk cases may include, work-related injuries, the firefighter's rule, police officers, and veterinarians By contrast, secondary assumption of the risk involves a breach of a duty owed to a plaintiff who knowingly encounters a risk of injury caused by that breach and has been merged into the comparative fault system. The assumption of risk doctrine covers the scope of a defendants duty of care and a hazardous risk is involved. Furthermore, assumption of risk is an affirmative defense that needs to be pleaded by the defendant. If the defendant fails to raise the assumption of risk defense, the privilege may be waived.

Primary assumption of risk demonstrates the notion that there is no duty on part of the defendant to protect the plaintiff from risk of injury. The notion covers the requirement of duty. In addition, there is an analysis of the defendant's activity and the relationship of the relevant parties to the activity.

Secondary assumption of the risk occurs when there is a breach of a duty owed to a plaintiff who knowingly encounters a risk of injury caused by that breach and has been merged into the comparative fault system. The injury may be a result of a combination of the defendant's and the plaintiff's culpable conduct.

Primary assumption of risk arises where a plaintiff voluntarily participates in an activity where "inherent risks" are involved. When a particular activity necessarily encompasses risks that are inherent in the nature of the activity, there is no duty to protect the plaintiff from those risks or to take steps to reduce those risks. Although a defendant may have no duty to protect the plaintiff from risks inherent in certain activities, the defendant does have a duty not to increase the inherent risks of those activities. The assumption of risk doctrine involves the existence and scope of the defendant's duty of care. The Court uses the facts of the case in order to decide if a defendant has a valid defense, as opposed to the jury deciding.

The court weighs the factors of whether the defendant breached the legal duty of care that was owed to the given plaintiff. There is no analysis that is made in regards to the reasonableness or knowledge of the plaintiff's action in the activity.

The Assumption of risk doctrine is applicable where a hazardous risk is involved. Thus, the court looks at the time, place, and person and the relationship of the parties when deciding whether something is dangerous. For example, it is considered hazardous if one is entering a building during the process of construction.

Work related injuries may also give rise to the primary assumption of risk doctrine. The court determines the applicability of the rule by examining various policy concerns in order to relieve a defendant of liability. Individuals that work in public safety are compensated for their defendants from their unusual duty of care to provide for injuries in the line of duty.

The nature of the assumption of risk defense is an absolute defense when public policy orders that the defendant does not owe a duty of care to the class of the plaintiff. Therefore, the court analyses whether or not there was a duty to the plaintiff by the defendant. Additionally, the burden of proof is on the defendant to show the plaintiff assumed the risk.

Assumption of risk is commonly found in sport activities. Moreover, the primary assumption of risk doctrine discusses the different forms of liability. First, there is no legal duty to protect another participant from risks that are common among the sport. For example, in cases between coaches and players, liability is not owed to the coach because sports have a inherent risk of harm.

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