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Guide to the Assumption of Risk Doctrine

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By Yosi Yahoudai
Founder and Managing Partner

Sometimes a defendant will raise the defense of “assumption of risk” to try to avoid liability when their negligence injures someone. California law can bar a plaintiff from recovering money damages in some situations under this doctrine, but it depends on the circumstances.

Assumption of the risk is a tricky legal issue. You will want to talk to a California personal injury attorney if the person who injured you through their carelessness now claims that you cannot sue them or recover your losses. Here is a quick guide to the assumption of the risk doctrine.

What is the Assumption of the Risk Doctrine?

The assumption of the risk doctrine gets applied to situations in which the person who gets injured is not allowed to recover their losses even if the defendant was negligent because the plaintiff voluntarily engaged in an inherently dangerous activity. Usually, assumption of the risk gets used when someone gets hurt during sporting or recreational activities.

An example of assumption of risk would be if you played soccer with friends at the park, collided with another player during the game, and broke your arm. Usually, you would have to bear the losses from your injury without getting compensation from the other player, the park, or the entity that organized the game. Getting injured during a soccer game is a foreseeable event, and you took that risk when you participated in the game.

What Does Not Count as Assumption of Risk?

People do not get free rein to do whatever they want during a sporting or recreational activity. The assumption of risk doctrine will not be a defense if someone:

  • Intentionally harmed someone, like stabbed or shot the plaintiff during the game
  • Was reckless or grossly negligent, not quite amounting to intentional harm but with disregard for the safety of others or the consequences of one’s actions
  • The injury happened because of conduct that was outside the scope of what one might reasonably foresee during the sporting, recreational, or another activity. For example, a football player took off his helmet and used it to pummel a helmetless player on the sidelines.

Participating in sports or recreational activities does not give permission to be the victim of an assault. 

Primary vs. Secondary Assumption of Risk

Cases that evaluate whether the assumption of the risk will qualify as a valid defense often talk about primary assumption of risk and secondary assumption of risk. A primary assumption of risk is something that is so inherent to the activity that to forbid the conduct would destroy the nature of the activity. The classic example of primary assumption of risk is the possibility of getting hit by a fly ball during a baseball game. Courts allow baseball parks, teams, and players to use the primary assumption of risk defense to avoid liability to people who accidentally get injured by flying baseballs.

Secondary assumption of risk can allow the injured person to recover a portion of their losses in proportion to their negligence. Let’s say that you wanted to rent a specific car from the rental agency at the airport, but the agent warned you that the brakes were not working reliably. 

You insisted on renting that vehicle, the brakes failed, and you got injured. You voluntarily assumed the risk of injury from a car with a known defect, but the rental agency had a duty not to rent out vehicles with safety issues. Both parties were negligent. The percentage of your negligence will reduce but not bar your money damages.

This is but a brief overview of this complex issue. A California personal injury attorney can talk to you about your situation and help you seek compensation for your losses. Get in touch with our office today for legal assistance, we offer a free consultation.

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About the Author
Yosi Yahoudai is a founder and the managing partner of J&Y. His practice is comprised primarily of cases involving automobile and motorcycle accidents, but he also represents people in premises liability lawsuits, including suits alleging dangerous conditions of public property, third-party criminal conduct, and intentional torts. He also has expertise in cases involving product defects, dog bites, elder abuse, and sexual assault. He earned his Bachelor of Arts from the University of California and is admitted to practice in all California State Courts, and the United States District Court for the Southern District of California. If you have any questions about this article, you can contact Yosi by clicking here.