Assuming the Risk - KOTA Territory News

Assuming the Risk



Gary Jensen
Beardsley, Jensen and Von Wald

The defendant in a lawsuit may argue the defense of assumption of the risk in addition to the defense of contributory negligence.

If a person assumes the risk of personal injury or damages, he or she is not entitled to any recovery. To establish an assumption of the risk defense, the following must be shown:     

    1. The individual had actual or constructive knowledge of the existence of the specific risk involved; and     
    2. The individual appreciated the risk's character; and     
    3. The individual voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.     

Sometimes, it's obvious that a person assumed the risk of injury or damages; much of the time, however, it's not obvious so is the subject of testimony from witnesses, argument by counsel, and jury instructions from the judge.     

What is the difference between the defenses of "assumption of the risk" and "contributory negligence? In South Dakota, it's defined as follows:     

While the same conduct on the part of the plaintiff may amount to both assumption of the risk and contributory negligence, the two defenses are distinct. Assumption of the risk involves a voluntary or deliberate decision to encounter a known danger whereas contributory negligence frequently involves the inadvertent failure to notice danger. In addition, contributory negligence must be a legal cause of the injury in order to be a defense, while assumption of the risk need not cause the injury in order to bar recovery.     

How about these circumstances:     

    Driver A is confronted at the start of a construction zone with conspicuous signs warning drivers of a hazardous condition – narrow     shoulders with a steep drop off – and a recommended detour to avoid the whole mess. Meanwhile, Driver B, coming from the other    direction, is not warned of the hazard by signs, but it is there to be seen if Driver B is paying attention.     

    If Driver A and Driver B proceed into the construction zone and are involved in an accident because they get too far over and drop     off the shoulder, then did either one, or both, assume the risk? Were either one, or both, contributorily negligent and, if so, was     their contributory negligence "more than slight?"     

Could it be both – did each assume the risk and was each contributorily negligent more than slight?     


E-mail Gary is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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