What is ASSUMPTION OF RISK? Definition of ASSUMPTION OF RISK in Black's Law Dictionary
Exists where none of fault for injury rests with plaintiff, but where plaintiff assumes consequences of injury occurring through fault of defendant, third person, or fault of no one. Rodgers v. Stoller, 284 Ky. 108, 143 S. W.2d 1047, 1048. It is based upon the maxim "volenti non fit injuria," which means that to which a person assents is not regarded in law as an injury. Poole v. Lutz & Schmidt, 273 Ky. 586, 117 S.W.2d 575, 576. And predicated upon knowledge and consent. Kansas City Southern Ry. Co. v. Diggs, 205 Ark. 150, 167 S.W.2d 879, 883. While more generally used as between master and servant, courts do not confine it to such relationship. Adams' Adm'r v. Callis & Hughes, 253 Ky. 382, 69 S.W.2d 711, 712.
Doctrine held applicable in action by automobile guest passen ger. Gill v. Arthur, 69 Ohio App. 386, 43 N.E.2d 894, 899. But held not applicable in automobile collision cases generally. Schubring v. Weggen, 234 Wis. 517, 291 N.W. 788, 789, 790, 791.
In some jurisdictions, doctrine confined to master and servant relation. Dowse v. Maine Cent. R. R., 91 N.H. 419, 20 A.2d 629, 631; Parker v. GrandTrunk Western R. Co., 261 Mich. 293, 246 N.W. 125, 126; West Texas Utilities Co. v. Reuner, Tex., 32 S.W.2d 264, 270. A term or condition in a contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that dangers of injury ordinarily or obviously incident to the discharge of his duty in the particular employment shall be at his own risk. Parker v. City of Wichita, 150 Kan. 249, 92 P.2d 86, 89; Wisconsin & Arkansas Lumber Co. v. Otts, 178 Ark. 283, 10 S.W.2d 364, 365; Southern Pac. Co. v. McCready, C.C.A.Cal., 47 F.2d 673, 675. It has reference to dangers that are normally and necessarily incident to the occupation, which are deemed to be assumed by workmen of mature years, whether they are actually aware of them or not. Chesapeake & 0. Ry. Co. v. Cochran, C.C.A.W.Va., 22 F.2d 22, 25.
It is founded upon the knowledge of the servant either actual dr constructive, as to the hazards to be encountered and his consent to take the chance of danger. Schuppenies v. Oregon Short Line R. Co., 38 Idaho, 672, 225 P. 501, 505. But it does not include the risks from the negligence of the master, or the gross negligence of his superior servant. Burton Const. Co. v. Metcalfe, 162 Ky. 366, 172 S.W. 698, 702; "Contributory negligence" is not synonymous with assumption of risk. Dolese Bros. Co. v. Kahl, C.C.A.Iowa, 203 F. 627, 630. "Assumed risk" is founded upon the knowledge of the employee, either actual or constructive, of the risks to be encountered, and his consent to take the chance of injury therefrom. Contributory negligence implies misconduct, the doing of an imprudent act by the Injured party, or his dereliction in failing to take proper precaution for his personal safety. The doctrine of assumed risk is founded upon contract, while contributory negligence is solely matter of conduct. Wheeler v. Tyler, 129 Minn. 206, 152 N.W. 137.
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