Assumption of Risk - Express Agreement

The parties can enter into a written agreement absolving the defendant from any obligation of care for the benefit of the plaintiff and liability for the consequence of conduct that would otherwise constitute negligence. In the ordinary case, public policy does not prevent the parties from contracting in regard to whether the plaintiff will be responsible for the maintenance of personal safety. A person who enters into a lease or rents an animal, or enters into a variety of similar relations entailing free and open bargaining between the parties, can assent to relieving the defendant of the obligation to take precautions and thereby render the defendant free from liability for negligence.

The courts have refused to uphold such agreements, however, if one party possesses a patent disadvantage in bargaining power. For example, a contract exempting an employer from all liability for negligence toward employees is void as against public policy. A carrier transporting cargo or passengers for hire cannot evade its public responsibility in this manner, even though the agreement limits recovery to an amount less than the probable damages. The contract has been upheld, however, when it represents a realistic attempt to assess a value as liquidated or ascertained damages in advance, and the carrier graduates its rates in accordance with such value, so that complete protection would be available to the plaintiff upon paying a higher rate. The same principles apply to innkeepers, public warehousemen, and other professional bailees—such as garage, parking lot, and check-room attendants—on the basis that the indispensable necessity for their services deprives the customer of all meaningful equal bargaining power.

An express agreement can relieve the defendant from liability for negligence only if the plaintiff comprehends its terms. If the plaintiff is not cognizant of the provision in his or her contract, and a reasonable person in the same position would not have known of it, it is not binding upon the individual, and the agreement fails for lack of mutual assent. The expressed terms of the agreement must apply to the particular misconduct of the defendant. Such contracts generally do not encompass gross, willful, wanton, or reckless negligence or any conduct that constitutes an intentional TORT.