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Is assumption of risk a defense to premises liability?

Generally under California law an owner or occupier of land owes a duty of reasonable care toward others who are on the property; a failure to exercise such reasonable care to avoid foreseeable injury can result in the owner or occupier becoming liable under the legal theory of premises liability.

Owners and occupiers of property have over the years tried different legal defense theories to avoid being held liable in premises liability cases. One such theory has been that in some cases a person on the property of another can accept the existence of a risk of harm to himself, and that in so doing absolves the owner or occupier of legal responsibility for any harm that occurs. This is known as the “assumption of risk” defense.

There are two types of assumption of risk: “primary," in which the defendant owes no duty of care to the plaintiff, and “secondary," in which the defendant may owe a duty of care to a plaintiff who may have known of and even assumed at least part of the risk of harm. Primary assumption of risk serves as a bar to recovery. Secondary may still allow for some recovery.

California negligence law uses the principle of comparative fault, under which any assumption of risk on the part of a premises liability plaintiff is secondary. This means is that if a person enters onto the property of another, and a risk of harm exists there, the owner or occupier of the property generally still owes a duty of care to the plaintiff even if the plaintiff knew beforehand of the risk. Secondary assumption of risk in this case means that the plaintiff may still recover money damages for harm suffered, but that recovery is subject to a comparative fault analysis which can reduce the award proportionately to the plaintiff’s degree of negligence.

This post is meant for general information on the topic of premises liability, and should not be taken as legal advice. If you need to know more about how premises liability law works in California, it is advisable to ask specific questions to a personal injury attorney licensed in this state.

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