Legal Definitions - secondary assumption of risk

Secondary assumption of risk occurs when an individual voluntarily and unreasonably encounters a known danger that was created by another person's negligence. This concept differs from "primary assumption of risk," which typically applies when a person participates in an activity with inherent, obvious risks (like attending a sporting event) where the defendant may not have a duty to protect them from those specific risks.

In cases of secondary assumption of risk, the defendant *has* been negligent, creating a hazardous situation. The plaintiff then becomes aware of this specific danger but chooses to proceed anyway, and their decision to do so is considered unreasonable under the circumstances. In many modern legal systems, secondary assumption of risk is often analyzed under principles of comparative fault or comparative negligence, meaning the plaintiff's recovery for their injuries might be reduced rather than completely barred, depending on the extent of their own responsibility.

Here are some examples:

• Imagine a homeowner who hires a contractor to repair their roof. The contractor negligently leaves a section of the roof uncovered during a rainstorm, causing a significant leak in the attic. The homeowner sees the water pouring in and, rather than calling the contractor or a professional to assess the damage, decides to climb into the attic themselves to try and catch the water in buckets, despite knowing the attic floor is unstable due to the water and there are exposed electrical wires. The homeowner slips on the wet floor and falls, sustaining an injury.

  This illustrates secondary assumption of risk because the contractor's negligence (leaving the roof uncovered) created the dangerous condition. The homeowner was aware of the specific dangers (unstable wet floor, exposed wires) but chose to voluntarily and unreasonably enter the hazardous attic, contributing to their own injury.

• Consider a public park where a city maintenance crew negligently leaves a large, clearly visible hole in a walking path without any warning signs or barriers. A jogger, noticing the hole and understanding the risk of tripping, decides to try and jump over it rather than taking a slightly longer detour around it. The jogger misjudges the jump, falls into the hole, and breaks an ankle.

  Here, the city's negligence (leaving an unmarked, unbarricaded hole) created the risk. The jogger was aware of the specific danger posed by the hole but voluntarily and unreasonably chose to attempt to clear it, rather than taking a safer alternative, thereby assuming the risk of injury.

• Suppose a restaurant owner negligently fails to fix a broken step at the entrance of their establishment, despite multiple customer complaints. A delivery driver arrives with an order, clearly sees the broken step, and even comments on its hazardous condition to a hostess. Despite this awareness, the driver decides to use the broken step anyway to save a few seconds, rather than using an alternative, intact entrance nearby. The driver trips on the broken step and drops the food, also spraining their wrist.

  This scenario demonstrates secondary assumption of risk because the restaurant owner's negligence (failing to repair the step) created the hazard. The delivery driver was fully aware of the specific danger but voluntarily and unreasonably chose to encounter it, contributing to their own injury and the damage to the food.