Defenses and Affirmative Defenses
Liability Defenses
Express assumption arises from a written waiver, while implied assumption arises from voluntarily encountering a known risk. Primary assumption negates duty entirely, and secondary assumption is generally merged into comparative fault.
Treatment varies substantially by state.
Alternative Names:
Assumed Risk, Voluntary Assumption of Risk
Why it Matters?
Primary assumption is the version that still defeats claims outright, since it establishes that no duty existed as to risks inherent in an activity, which is why recreational and sports injury claims frequently fail. Secondary assumption has been absorbed into comparative fault in most states and merely reduces recovery. Identifying which version applies determines whether the defense is dispositive or reductive.
Frequently Confused with
Related terms
Frequently asked questions
What distinguishes primary from secondary assumption?
Which version survives comparative fault?
