Term Of The Day – Assumption Of Risk
The Assumption of Risk term creates a lessening of liability in certain situations.. Workers Compensation usually does not allow any defendants to use this type of defense due to the “no-fault ” provisions built into the Workers Compensation system Some states do allow a reduction in benefits to an injured employee in certain cases. I have never seen it happen, though.
Situations that encompass assumption of the risk have been classified in three broad categories. The plaintiff:
- In advance, has consented to relieve the defendant of an obligation of conduct toward him or her and to take a chance of injury from a known risk ensuing from what the defendant is to do or leave undone. The consequence is that the defendant is unburdened of all legal duty to the plaintiff and, therefore, cannot be held liable in negligence.
- Voluntarily enters into some relation with the defendant, knowing that the defendant will not safeguard the plaintiff against the risk. The plaintiff can then be viewed as tacitly or implicitly consenting to the negligence, as in the case of riding in a car with knowledge that the steering apparatus is defective, which relieves the defendant of the duty that would ordinarily exist.
- Cognizant of a risk previously created by the negligence of the defendant, proceeds voluntarily to confront it, as when he or she has been provided with an article that the plaintiff knows to be hazardous and continues to use after the danger has been detected. If this is a voluntary choice, the plaintiff is deemed to have accepted the situation and assented to free the defendant of all obligations.
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