The Plaintiff’s Liability for Engaging in Dangerous Behaviors

WHAT IS “ASSUMPTION OF THE RISK”? 

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.

In simpler terms, where a 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 may be barred from recovering damages from the defendant even if the defendant acted negligently.

However, the landlord does have a duty to remedy known dangers and to act in a way that does not increase the risks of harm to invitees or others entering upon or using his or her land.

ASSUMPTION OF THE RISK APPLIES TO CERTAIN PREMISES LIABILITY CLAIMS

Property owners, and tenants in possession, have a duty to mitigate and/or warn of hazardous conditions on their properties. However, the owner (or tenant in possession) does not have a duty to protect a plaintiff against risks inherent in the specific activities the plaintiff chooses to engage in while on the property. This most frequently arises in the context of dangerous sporting activities, such as hunting, which often result in injuries while engaging in the sport on the land of another.

Plaintiffs generally cannot recover damages from a landlord (or tenant in possession) if the plaintiff knowingly engages in hazardous activities, assumes the risks associated with those activities (either expressly or implicitly) and then suffers an injury.