Defenses to Negligence Overview: Assumption of the Risk

Updated: Jun 26, 2020


Large farm (Photo by Edwin Remsberg).
Large farm (Photo by Edwin Remsberg).

Note: This post is not a substitute for legal advice.

Today, we continue our series on defenses to negligence with assumption of the risk. Those producers who allow the public on their property (customers, employees of your integrator if you are a poultry operation, etc) or just have concerns about a teenager wrecking his ATV on your property may be curious to learn about potential defenses that may exist. Please remember every negligence claim is different and the facts of each claim will depend on the defenses available.

Assumption of the risk, like contributory negligence, is an affirmative defense. The idea behind assumption of the risk is that the injured person who voluntarily consented to be exposed to a known risk cannot later sue for damages (Crews v. Hollenbach, 751 A.2d 481, 488 (Md. 2000)). When a person has assumed the risk, you no longer owe a duty of care to that person. Maryland courts have previously ruled that to prove assumption of the risk, three elements need to be shown: 1) knowledge of the danger; 2) appreciation of the risk; and 3) voluntarily confronting it. Proving this will depend on the facts in each case.


White barn with silos (Photo by Edwin Remsberg).
White barn with silos (Photo by Edwin Remsberg).

In order to assume the risk, you must know the risk exists. You can never assume a risk that you do not know exists. This is an objective standard that would be decided by the jury. For example, in a PA case involving an injured party who fell into a PTO shaft on a grain auger, the PA court found that the court would need to determine if the injured party knew or had heard stories about the dangers of PTO shafts to determine if he knew of the risk. To make a determination, a court could look at the injured party’s history in agriculture, or whether he had met people who had been injured in accidents with PTO shafts, etc.

You must also appreciate the risk as well as know the risk exists. This typically means that you are aware of the risks and appreciate the danger associated with the risk. For example, in a case involving an explosion caused by a gas leak, the Court of Appeals found that the injured party (a gas line repairman with 20 years of experience) fully appreciated the specific risk of using a backhoe near a gas leak (Crews, 2000). From our PTO shaft example, if the injured person had 20 plus years of experience working on grain farms, utilizing an auger powered by a