"Assumption of Risk" as an Affirmative Defense in Negligence Cases

To prove that someone else's negligence caused the harm complained of in a personal injury lawsuit, the injured party must prove all three of the following:

  1. The person had a legal duty in relation to the injured party, e.g., the duty owed to a consumer by manufacturers and distributors
  2. The person breached the duty by failing to act as a reasonable person would have acted in a similar position
  3. The breach of duty caused the injury in question

Even if the injured party succeeds in meeting all three elements, the person or entity accused of the negligent act might reduce or altogether eliminate liability by asserting what is known as an "affirmative defense." Although state law varies with respect to their validity, affirmative defenses that may be available to people accused of negligence include "assumption of risk" and the doctrines of "comparative negligence" and "contributory negligence."

The "Assumption of Risk" Defense
In states that recognize "assumption of risk" as an affirmative defense in personal injury cases, the defendant can reduce or eliminate liability by showing that the injured party was aware of the potential for injury and proceeded anyway, thereby "assuming the risk." Specifically, in a case where a defective product has caused the injury in question, a defendant manufacturer and/or distributor might assert one of the following under the "assumption of risk" defense:

  1. The user signed a written consent form (e.g., to participate in an athletic event)
  2. The user was aware of the risk and chose to disregard it (e.g., read a posted warning)
  3. The user's maintenance of the product was inadequate
  4. The user did not follow directions

Not all states recognize the "assumption of risk" defense, however, and many that do refuse to recognize it as a complete bar to recovery. Under these circumstances, the doctrines of "comparative negligence" and "contributory negligence" might be available as affirmative defenses. For example, the "assumption of risk" defense has very limited application in California, which follows the doctrine of "comparative negligence."

"Comparative Negligence" and "Contributory Negligence"
Like "assumption of risk," the doctrines of "comparative negligence" and "contributory negligence" are tools used by defendants in personal injury cases to mitigate their liability. Under the doctrine of "contributory negligence," the injured party is completely barred from recovering any damages if his own negligence contributed to the harm in any way.

In contrast, most states have adopted "comparative negligence;" a doctrine which reduces the injured party's award of damages in proportion to his own negligence. It is important to note that the availability of affirmative defenses in personal injury cases varies from state to state.

Newsletter Articles

Personal Injury Headlines