Assumption of Risk

The doctrine of assumption of risk does not bar the plaintiff from recovery unless the individual's decision is free and voluntary. There must be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. A risk is not viewed as assumed if it appears from the plaintiff's words or from the circumstances, that he or she does not actually consent. If the plaintiff relinquishes his or her better judgment upon assurances that the situation is safe or that it will be remedied or upon a promise of protection, the plaintiff does not assume the risk, unless the danger is so patent and so extreme that there can be no reasonable reliance upon the assurance.

Even when the plaintiff does not protest, the risk is not assumed when the conduct of the defendant has provided the individual with no reasonable alternative, causing him or her to act under duress. When the defendant creates a peril, such as a burning building, those who dash into it to save their own property or the lives or property of others do not assume the risk when the alternative is to permit the threatened injury to occur. If, however, the danger is disproportionate to the value of the interest to be protected, the plaintiff might be charged with contributory negligence in regard to his or her own unreasonable conduct. When a reasonably safe alternative exists, the plaintiff's selection of the hazardous route is free and can constitute both contributory negligence and assumption of risk.

The defendant has a legal duty, which he or she is not at liberty to refuse to perform, to exercise reasonable care for the plaintiff's safety, so that the plaintiff has a parallel legal right to demand that care. The plaintiff does not assume the risk while using the defendant's services or facilities, notwithstanding knowledge of the peril, when he or she acts reasonably, and the defendant has provided no reasonable alternative other than to refrain completely from exercising the right. A common carrier or other public utility which has negligently furnished a dangerously defective set of steps cannot assert assumption of risk against a patron who uses the steps as the sole convenient means of access to the company's premises. The same principle applies to a city maintaining a public roadway or sidewalk or other public area that the plaintiff has a right to use and premises onto which the plaintiff has a contractual right to enter. When a reasonable alternative is available, the plaintiff's recalcitrance in unreasonably encountering danger constitutes contributory negligence, as well as assumption of risk.