Assumption of Risk

What Is Assumption Of Risk?

Assumption of risk is a complete defense based on consent. The defendant argues that the injured person knew of the particular risk that caused the injury, appreciated how dangerous it was, and voluntarily exposed themselves to it anyway. If all three elements are proved, the injured person is treated as having agreed in advance to bear the consequences, and the claim fails regardless of the defendant’s negligence. The doctrine’s Latin name, volenti non fit injuria, means that no wrong is done to one who consents.

The defense differs from contributory negligence in theory. Contributory negligence asks whether the injured person was careless; assumption of risk asks whether the injured person knowingly accepted a danger, which can be a perfectly reasonable choice. A skilled skier who knows a slope is icy and skis it carefully has assumed the risk of the ice without being careless. In practice the two defenses overlap heavily, because the same evidence of knowledge and choice supports both, and in North Carolina that overlap has largely swallowed the implied form of the defense.

How Does Assumption Of Risk Work In North Carolina?

North Carolina courts confine the assumption-of-risk defense to cases in which the parties had a contractual relationship. The typical settings are employment, a signed participation agreement, a membership contract, or a lease. Where there is no contract between the injured person and the defendant, the defense is not available as such. The defendant is not left without an argument, however: the same facts, that the injured person saw the danger and went ahead, are presented as contributory negligence, and under North Carolina’s all-or-nothing rule that argument bars the claim just as completely if the defendant proves it under N.C. Gen. Stat. § 1-139.

Express assumption of risk, meaning a signed waiver or release, is enforceable in North Carolina within limits. Courts read waivers strictly against the party that drafted them, require the language to clearly cover the kind of negligence and the kind of injury at issue, and generally will not enforce a waiver that purports to excuse gross negligence, willful or wanton conduct, or conduct that violates public policy. A waiver signed by a parent on behalf of a minor raises additional questions. Whether a particular waiver bars a particular claim is a document-by-document analysis, and no one should assume a signature ended their case before a lawyer has read it.

What Does Assumption Of Risk Look Like In A North Carolina Case?

Consider a hypothetical injury at a Charlotte trampoline park. A 30-year-old signs the park’s electronic waiver on a tablet at check-in, then lands awkwardly in a foam pit that, unknown to him, has been allowed to compact to a few inches of padding over concrete. He fractures a vertebra. The park raises express assumption of risk: he signed a waiver that covers “all risks of trampoline activities, including negligence of the operator.” His lawyer’s response is that the waiver covers the ordinary risks of jumping, not a hidden condition the park created by failing to maintain the pit, and that if the park knew the pit was unsafe and kept selling tickets, its conduct was grossly negligent, which no waiver in North Carolina will excuse. That dispute, over what the waiver actually covers and how bad the park’s conduct was, is where the case is decided.

Now consider a hypothetical fall at a Raleigh homeowner’s backyard party with no waiver at all. A guest sees that the deck stairs have no railing, uses them anyway, and falls. There is no contractual relationship, so the homeowner cannot plead assumption of risk as such. The homeowner instead pleads contributory negligence: the guest saw the open and obvious hazard and proceeded, so the guest failed to use ordinary care. Under North Carolina’s rule, if that is proved the guest recovers nothing. The label changed; the outcome did not.

Why Does Assumption Of Risk Matter For A North Carolina Injury Claim?

Because in North Carolina the “you knew the risk” argument arrives wearing a different name, and that name carries the harshest consequence in American tort law. In a comparative-negligence state, a jury that finds the injured person accepted some of the risk reduces the award by a percentage. In North Carolina, the defendant reframes the same facts as contributory negligence, and if any negligence by the injured person is proved to have contributed to the injury, the recovery is zero. The narrowing of the assumption-of-risk defense here is not a gift to injured people; it is a reflection of the fact that contributory negligence already does the same work.

The counterweights are the exceptions to contributory negligence. A defendant’s gross negligence, which the North Carolina Supreme Court in Yancey v. Lea described as wanton conduct done with conscious or reckless disregard for the rights and safety of others, defeats the contributory negligence defense, and the same conduct generally voids a waiver. The last clear chance doctrine can preserve a claim where the defendant had the final opportunity to avoid the injury. And a waiver’s own language limits it: a release that never mentions negligence, or that is buried in fine print, may not be enforced at all. A claim in this area must be filed within three years under N.C. Gen. Stat. § 1-52(16), and the analysis of any waiver should begin well before then. The exceptions to contributory negligence are explained in detail elsewhere on this site.

How Is Assumption Of Risk Different In A North Carolina Product Case?

North Carolina wrote a version of the defense into its products liability statute. Under N.C. Gen. Stat. § 99B-4, a manufacturer or seller is not liable if the user knew of or discovered a defect or dangerous condition in the product and voluntarily exposed himself to the danger, or if the user used the product contrary to express and adequate warnings he knew or should have known about. The same section makes the claimant’s own failure to use reasonable care a complete defense when it proximately caused the injury. In a products case, then, assumption of risk does not depend on a contract; it depends on what the user knew about the specific defect before using the product.