TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, August 7, 2018

Assumption of Risk


Thanks to Caroline Robelen.

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Cute sign which may help the defendant argue trespass, but not necessarily assumption of the risk. The message in the sign does not constitute a form of "express" assumption of the risk, because the sign, by itself, does not create an agreement between the parties. Moreover, to support an argument of "implied" assumption of the risk, the defendant would have to show that the plaintiff knew of the risk, appreciated its magnitude and voluntarily decided to take the risk anyway. A defendant may very well be able to support that argument, but the support would not come from the sign itself. In fact, the defendant could make this argument even if there was no sign at all.

So why put the sign up if it sounds like it is almost irrelevant? Well, simply because the sign may discourage people from suing by suggesting that they don't have a right to do so.

Having said all that, it should be noted that many jurisdictions don't recognize assumption of the risk as a separate defense anymore.

Posted by: Alberto Bernabe | Aug 7, 2018 6:59:54 AM

Hi, Alberto. I agree that people posting these signs hope to avoid being sued and that the sign is not aimed at express assumption of risk. I disagree that it is almost irrelevant. A defendant can make an implied secondary assumption of risk argument without a sign, but the value of the sign is evidentiary. It can help a defendant establish the three features you list. First, the plaintiff knew of the risk (the sign warned her). Second, the sign helps establish the plaintiff appreciated the magnitude of the risk (she could be hurt so badly that she would sue). Third, despite this knowledge, she went on the rocks. In addition, I think juries place a value on the fact the defendant acted to avoid the injury by warning people. If I am a defense lawyer, I would be delighted to have this evidence. When I was evaluating cases as a plaintiff’s lawyer, I knew warning signs reduced my chance of recovery considerably. Even in jurisdictions in which assumption of risk is folded into a comparative fault analysis, I think the effect on juries is similar.

Warning signs are technically less relevant to the tort of trespass because even a good faith mistake about breaking the close is not an excuse. Many jurisdictions, however, require notice to establish criminal trespass.

Posted by: Chris Robinette | Aug 14, 2018 6:24:01 AM

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