Intentional torts, such as assault, battery, and false imprisonment, are civil wrongs that are committed intentionally. Assumption of risk is a defense to intentional torts that can be asserted when the plaintiff voluntarily assumes the risk of harm by engaging in a particular activity. In order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had actual knowledge of the specific risk involved in the activity; (2) appreciated the magnitude of the risk; (3) voluntarily chose to encounter the risk; and (4) did so without any duress or coercion.
Assumption of Risk as a Defense to Intentional Torts
Assumption of risk is a defense in civil lawsuits alleging intentional torts. When successful, this defense bars the plaintiff from recovering damages because they voluntarily and knowingly exposed themselves to the risk of harm. Here’s a breakdown of its structure:
General Requirements for Assumption of Risk Defense
- Voluntariness: The plaintiff must have made a conscious and intentional decision to expose themselves to the risk.
- Knowledge of Risk: The plaintiff must have actually known about the risk of harm and appreciated its nature and extent.
- Specific Intent to Harm: The defendant must have had the specific intent to cause the plaintiff harm. Recklessness or negligence is not enough.
- Lack of Duty: The defendant does not owe a duty of care to the plaintiff if they have assumed the risk.
Types of Assumption of Risk
- Express Assumption: The plaintiff explicitly agrees to assume the risk in writing or orally.
- Implied Assumption (Primary or Secondary):
- Primary: Plaintiff voluntarily engages in an activity that inherently involves known risks.
- Secondary: Plaintiff encounters a specific hazard while engaging in an activity and chooses to continue despite knowing the risk.
Table: Assumption of Risk in Intentional Torts
| Tort | Primary Assumption | Secondary Assumption |
|---|---|---|
| Assault | Yes | No |
| Battery | Yes | No |
| False Imprisonment | No | Yes |
| Malicious Prosecution | No | Yes |
| Intentional Infliction of Emotional Distress | No | Yes |
Elements of Assumption of Risk Defense
- Plaintiff’s Voluntary Choice: Explain how the plaintiff willingly chose to expose themselves to the risk.
- Plaintiff’s Knowledge of Risk: Describe the evidence supporting the plaintiff’s knowledge of the specific risk.
- Defendant’s Specific Intent: Show that the defendant intended to cause harm or acted with malicious intent.
- Lack of Duty: Argue that the defendant owed no duty of care to the plaintiff due to their assumption of risk.
Impact of Assumption of Risk Defense
If successful, the assumption of risk defense completely bars the plaintiff from recovering damages, even if the defendant’s conduct was intentional. It is a valuable tool for defendants in intentional tort actions where the plaintiff voluntarily exposed themselves to the risk of harm.
Question 1:
Is assumption of risk a defense to intentional torts?
Answer:
No. Assumption of risk is not a defense to intentional torts because intentional torts are committed with the intent to harm or cause injury to another person. Assumption of risk requires that the plaintiff knowingly and voluntarily assumes the risk of injury, which is not possible when an intentional tort is committed as the intent is to cause harm.
Question 2:
What is the difference between assumption of risk and contributory negligence?
Answer:
Assumption of risk occurs when a plaintiff knowingly and voluntarily assumes the risk of injury, while contributory negligence occurs when a plaintiff’s lack of care contributes to their own injury. In assumption of risk, the plaintiff must have known and voluntarily consented to the risk, whereas in contributory negligence the plaintiff’s lack of care may not have been intentional or voluntary.
Question 3:
How does comparative fault affect the assumption of risk defense?
Answer:
Comparative fault reduces a plaintiff’s damages in proportion to their degree of fault. In cases where comparative fault applies, assumption of risk may still be a defense, but the plaintiff’s damages will be reduced by the percentage that they were at fault for assuming the risk.
Well, that’s all folks! We’ve covered the legality of assumption of risk as a defense against intentional torts. Remember, if you’re considering taking part in an activity that carries a known risk, think twice before signing away your right to hold others accountable if things go south. Stay safe out there, folks! Thanks for stopping by, and be sure to swing back for more legal tidbits in the future.