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legal maxim which governed civil relations between people sans the gods: "Volenti non fit injuria," or “no injury is committed against one who consents.” Two thousand years later, the wording has changed but the concept remains; a person who knowingly and voluntarily risks danger cannot blame anyone or recover damages for any resulting injury.
That moment when you realize the oath you gave did not mention battling wild beasts. Sofoklo/Shutterstock image.
Modern Assumption of The Risk
Photobac/Shutterstock
The elements of implied primary assumption of risk and express assumption of risk are virtually identical. The evidence must show: (1) the plaintiff possessed full subjective understanding, (2) of the presence and nature of the specific risk, and (3) voluntarily chose
to encounter the risk.6 The difference between the two is “ ceremonial and evidentiary. ”7
Implied Primary Assumption of Risk— WPI 13.03
It is a defense to an action for wrongful death if the person killed impliedly
nity that was merely witnessed by the gods. Source: Wikipedia.
6 Kirk v. Washington State University, 109 Wash.2d 448, 453 (1987)
7 Id.
assumed a specific risk of harm. A person impliedly assumes a risk of harm if that person knows of the specific risk associated with an activity, understands its nature, voluntarily chooses to accept the risk by engaging in the activity,
and impliedly consents to relieve the defendant of a duty of care owed to the person in relation to the specific risk.
involved, understands its nature, and voluntarily consents to accept the risk by agreeing in advance to relieve the defendant of a duty of care owed to the person in relation to the specific risk.
Image by Photobac/Shutterstock
Express assumption of the risk is a defense when “the plaintiff, in advance, has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to
do or leave undone.”8 The defense is based on contract and involves “an agreement by one party to relieve another of the duty to use reasonable care.”9 Express assumption of risk is a
bar to damages arising from the risk which was expressly assumed, but not damages arising from other risks which were not expressly assumed.10 Before
a person may expressly assume the
risk of another’s conduct, it must be shown that the person had knowledge
of the specific (as opposed to general) risk which caused the injury, that the person appreciated and understood its nature, and that the person voluntarily chose to incur it. The determination whether the person injured knowingly and voluntarily encountered the risk is subjective, i.e., whether the plaintiff in fact knew of and understood the risk, not whether a reasonable person would have comprehended the risk.11
8 Prosser and Keeton on the Law of Torts, § 68 (5th ed. 1984).
9 Scott v. Pacific West Mountain Resort, 119 Wn.2d 484 (1992); Vodopest v. MacGregor, 128 Wn.2d 840 (1996).
10 Kirk v. Washington State University, 109 Wn.2d 448, 453–54 (1987)
11 Shorter v. Drury, 103 Wn.2d 645, 656–57 (1985).
“Know your risk when entering the water.” Warning posted on beach in Provincetown, Massachusetts. Shutterstock image.
In Ridge v. Kladnick, 42 Wn.App. 785 (1986), the Washington Court of Appeals held that sport participants impliedly consent to being injured by the sport’s inherent risks and that this “primary” assumption of risk remained a complete bar to recovery even after enactment of the Tort Reform Act and comparative fault in Washington in 1986. Thus, a roller skater assumed the risk of being knocked down and injured while participating in a game called Wipeout where skaters deliberately knocked each other down until just one remained standing.
Warning posted at The Wedge in Newport Beach, California. Note: no mention of the unique beach conditions which make the area one of the greatest but most dangerous places to body surf in the world. Shutterstock image.
Express Assumption of Risk— WPI 13.04
It is a defense to an action for wrongful death if the person killed expressly assumed a specific risk of harm. A person expressly assumes a risk of harm if that person knows of the specific risk
38 PIERCE COUNTY LAWYER | March/April 2024