Assumption of Risk Act

Summary

In recent years, courts in some states have held that when the legislature adopted a comparative fault statute, which bases the award to the plaintiff on the defendant’s percentage of responsibility for the injury to plaintiff, the legislature abolished the defense of assumption of the risk. About half of the states do not recognize assumption of the risk as a defense to liability. As part of the civil justice reform effort, however, legislators in some states have introduced bills to affirm that assumption of the risk remains a defense to liability. Because courts in some states have abolished the defense while interpreting the state’s comparative fault statute, legislators in states with a comparative fault statute should seek to amend that statute to incorporate this assumption of the risk provision.

Model Legislation

Section 1. {Title}

This act shall be known and may be cited as the Assumption of the Risk Act.

Section 2.

In any tort action, a defendant shall not be liable if the injured person assumed the risk of injury or harm to property. Assumption of the risk shall mean that the injured:

(A) Knew of and appreciated the risk; and

(B)  Voluntarily exposed himself or herself to the danger that proximately caused the injury or damage.

Section 3.

The elements of assumption of the risk may be inferred, as a matter of either fact or law, from circumstantial evidence that the injured person must have known and appreciated the risk and voluntarily encountered it.

Section 4. {Severability clause}

Section 5. {Repealer clause}

Section 6. {Effective date}

Approved by ALEC Board of Directors in 1995.

Reapproved by ALEC Board of Directors on January 28, 2013.

Keyword Tags: Liability

Task Forces