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• Scenario : P consents to waiving D’s liability for consequences of D’s negligence (Boyle)
• Enforceability of waiver : Governed by contract law
(Tunkl) o
Compulsory assumption of risk/duress o
Lack of consideration o
Contract of adhesion o
Mistake/misrepresentation/fraud o
Void for being against public policy/violates statute
• Consequences : D not liable if waiver enforceable and
D’s actions within scope of waiver

(majority approach)
Scenario : P voluntarily encounters risk created by D’s negligence + no written or verbal agreement
Inquiry #1 : P’s actions signal implied consent to D’s negligent act?
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If yes, then express assumption of risk
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If no, then implied assumption of risk
Inquiry #2 : If implied assumption of risk, was P negligent in voluntarily encountering risk created by
D’s negligence?
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If yes, P was contributorily negligent
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If no, D fully liable

Plaintiff, a certified home nurse, was hired to care for Defendant. Defendant suffered from
Alzheimer’s disease and was known to become combative when agitated. Defendant’s family informed Plaintiff of Defendant’s propensity for aggressiveness when they interviewed her for the position. One morning, when Plaintiff was helping Defendant get out of bed, Defendant became agitated and struck Plaintiff in the face.
Plaintiff suffered a broken nose. Plaintiff sued
Defendant for negligence. Will Plaintiff prevail?

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D owes P a Legal Duty
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(1) Not to act recklessly
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(2) Not to increase risks beyond those inherent in activity
* No duty ordinary care
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Breach of Duty
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Actual Damages
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Factual Cause
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Proximate Cause

Primary Assumption of Risk (Avila)
• Scenario : Deemed to have consented to activity’s inherent risks
• Consequences : Impacts D’s legal duty o
No duty to minimize or eliminate inherent risks (ordinary care) o
Duty to not act recklessly or increase risks beyond inherent risks
Secondary Assumption of Risk (Majority Rule)
• Implied Assumption of Risk (Betts)
• Scenario : P voluntarily encounters risk created by D’s negligence, but does not consent to waiving D’s liability
• Consequences : D owes duty ordinary care. If prima facie case satisfied, D liable but P’s recovery reduced if P contributorily negligent in voluntarily encountering risk
• Express Assumption of Risk (Boyle, Tunkl, Moore)
• Scenario : P voluntarily encounters and consents to risk created by D’s negligence + waiver is enforceable
• Consequences : Complete bar to liability

Great America Amusement Park's most popular ride is its bumper cars. Riders in the padded, independently operated cars love crashing into one another at low speeds. A sign posted at the entrance to the ride lists the ride’s rules. One of the rules prohibits riders from bumping into each other head-on, warning that injuries may result from doing so. Despite the rule, riders regularly collide with one another head-on. Although he had read the ride’s rules while waiting in line, Pedro – an avid fan of bumper cars – purposely collided head-on with another rider. Pedro suffered a serious neck injury from the resulting jolt. Pedro sues Great America and argues they were negligent for failing to configure the ride so as to reduce the likelihood of head-on collisions, something other amusement parks have done. Will
Pedro prevail?