Assumption of Risk and Liability Waivers

The defense that a person who knowingly took on a danger cannot complain of it - and the signed waiver that tries to make that agreement explicit before the gym, the ski slope or the trampoline park.

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What it means

Assumption of risk is a defense to an injury claim. In its "express" form it is a contract: the injured person signed a waiver or release agreeing in advance not to hold the operator liable for injuries from the activity. In its "implied" form it is inferred from conduct: a person who voluntarily took part in an activity whose inherent dangers were obvious - being struck by a foul ball at a baseball game, falling while skiing - is treated as having accepted those inherent risks, and the operator owes no duty to protect against them.

The distinction the law draws is between the risks inherent in the activity and risks the operator added by carelessness. A ski resort is generally not liable for a fall on a properly maintained run; it may well be liable for an unmarked snow-making pipe across it. Most states now treat implied assumption of risk, where it is not a complete "no duty" bar, as a form of the injured person's own fault, to be weighed under the comparative-negligence rule rather than barring the claim outright.

Signed waivers are enforced in most states if they are clear, conspicuous and cover the injury that occurred, but every state has limits. Nearly all refuse to enforce a waiver of liability for gross negligence, recklessness or intentional harm; several will not enforce a waiver signed by a parent on behalf of a child; a few refuse to enforce pre-injury releases altogether as against public policy; and ambiguous wording is read against the operator who drafted it. Whether a waiver covers the defendant's own negligence at all is, in many states, a question of whether it says so plainly.

Where this comes from

When people hire a lawyer for this

A signed waiver is not the end of the question, and an operator who says otherwise is stating its position, not the law. A lawyer reads the document against the state's rules on scope, conspicuousness and gross negligence, and looks at whether the injury came from an inherent risk or from something the operator did or failed to do - which is usually where the case is.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• Comparative and Contributory NegligenceRules that decide what happens to a claim when the injured person was also partly careless - and they differ sharply from state to state.
• Contingency FeeA fee arrangement in which the lawyer is paid a percentage of what is recovered, and is paid no fee if nothing is recovered.
• Damages in a Personal Injury ClaimThe categories of loss an injured person can be compensated for - the bills and lost earnings, the pain and the lost enjoyment of life - plus the separate and rarer category meant to punish, and the state caps that limit some of them.
• Dog Bite LiabilityWho pays when a dog injures someone - the strict-liability statutes most states have and what they cover, the older "one-bite" rule that survives in the rest, negligence and leash-law claims that exist under either, the defenses of trespass and provocation, landlord and keeper liability, how homeowners' insurance responds, and the dangerous-dog proceedings that run alongside the civil claim.
• Dram Shop and Social Host LiabilityWhen a bar, restaurant, liquor store or private host can be held responsible for injuries caused by someone they served alcohol to - the statutes that create the claim in most states and the very different standards they set (visibly intoxicated, under the legal drinking age, or both), the states with no claim at all, social-host rules for minors, what must be proved, the notice requirements, and who can sue.
• Emotional Distress Claims (IIED and NIED)When the law compensates psychological harm on its own, without a physical injury - the intentional-infliction tort and its "outrageous conduct" threshold, the negligent-infliction claim and the limits states put on it (the impact, zone-of-danger and bystander rules), the proof a claim needs, and how these differ from the emotional-distress damages that ride on any ordinary injury claim.
• Independent Medical ExaminationAn examination by a doctor chosen and paid for by the other side - routine in injury, disability and workers' compensation claims, and not treatment.
• Insurance Bad FaithAn insurer's duty to deal fairly with its own policyholder - and the separate claim that arises when it does not.
• Joint and Several LiabilityWhat happens when more than one person is responsible for the same injury - the traditional rule that each is liable for the whole judgment, the modern rules in most states that limit it by share of fault or by type of damages, contribution between defendants, the effect of settling with one of them, and why the rule decides who actually pays when one defendant is uninsured or bankrupt.
• Loss of ConsortiumThe claim of a spouse - and in some states a child or parent - for what an injury to a family member took from the relationship itself: companionship, affection, household services and the marital relationship, what has to be proved, why it is derivative of the injured person's claim, and how it is pleaded, valued and settled.
• NegligenceCarelessness that the law treats as a legal wrong because it fell below the level of care a reasonable person owed to someone else.
• Negligence Per SeThe rule that breaking a safety statute - running a red light, serving alcohol to a minor, violating a building code - can itself establish that the defendant was careless, without the jury deciding what a reasonable person would have done.
• Premises LiabilityThe responsibility of whoever owns or controls property for injuries caused by its condition - the slip on the wet floor, the broken stair, the unlit car park - and the rules that make the visitor's reason for being there matter.
• Product LiabilityA claim against the maker or seller of a product that injured someone because of how it was designed, how it was made, or what it failed to warn about - and the federal rules that can shut some of those claims down.
• Res Ipsa LoquiturThe doctrine that lets an injured person prove negligence from the accident itself when the cause is unknown but the event is one that does not ordinarily happen without carelessness - its elements, the exclusive-control requirement and how it has loosened, what the doctrine does procedurally (an inference, or a presumption shifting the burden), and where it is and is not used.
• Strict LiabilityLiability for harm without any showing of carelessness - the rule for abnormally dangerous activities, for defective products in most states, and, under many state statutes, for the owner of a dog that bites.
• Subrogation and Medical Liens on a SettlementWhy an injured person does not keep the whole settlement - the right of health insurers, Medicare, Medicaid, ERISA plans, workers' compensation carriers and hospitals to be repaid from a recovery for the treatment they paid for, how each kind of lien is created and enforced, the rules that reduce them, and why the liens have to be resolved before the check is cashed.
• Suing the Government for an Injury (Tort Claims Acts)Why an injury caused by a government employee or a public property defect follows different rules - sovereign immunity and the statutes that waive it, the written claim that must be presented to the agency before any lawsuit and the short deadline for it, the exceptions that keep immunity (discretionary functions, most intentional torts, certain activities), damage caps, and the no-jury and no-punitive-damages rules.
• Vicarious Liability (Respondeat Superior)The rule that makes an employer liable for harm its employee causes while doing the job - the reason the trucking company, the hospital or the delivery firm is the defendant, and the reason "independent contractor" is fought over so hard.
• Workers' CompensationThe state no-fault system that pays medical care and part of lost wages for an injury at work without any proof of fault - and, in exchange, takes away the right to sue the employer, though not the right to sue anyone else who caused it.
• Wrongful Death ClaimA claim brought by surviving family members or an estate when someone dies because of another party's wrongful act.

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