Assumption of Risk Act Exposed

The Assumption of Risk Act is listed under ALEC's Civil Justice Task Force and was included in the 1995 ALEC Sourcebook of American State Legislation. According to ALEC.org, the Act was approved by the Board of Directors in 1995, re-approved on January 28, 2013. (Accessed on 2/18/2016).

CMD's Bill Summary

This bill invokes an arcane legal standard that applies to tort (personal injury) lawsuits. It gives a defendant immunity from liability when a plaintiff has voluntarily exposed him or herself to a known risk. For example, a person injured on a roller coaster may bring a lawsuit against the amusement park for negligence, and the amusement park could invoke the "assumption of risk" doctrine, alleging that the individual knew that riding on a roller coaster was inherently dangerous, and therefore the amusement park should not be liable because the individual voluntarily assumed the risk when it got on the ride. If the bill was codified into law, corporations could expand the doctrine into a variety of settings, especially by including "assumption of risk" language in contracts.

ALEC Bill Text

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

{Title, enacting clause, etc.}

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:

(1) knew of and appreciated the risk; and

(2) 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.}

ALEC's Sourcebook of American State Legislation 1995