法律英语术语选粹（3）： Assumption of the risk
Assumption of the risk
In tort law, it is an affirmative defense used by the defendant to a negligence suit claiming that the plaintiff had knowledge of a condition or situation obviously dangerous to himself or herself and yet voluntarily exposed himself or herself to the hazard created by the defendant, thereby relieving the defendant of legal responsibility for any resulting injury; in contract law, it is the express agreement by an employee to assume the risks of ordinary hazards arising out of his or her occupation. Contributory negligence arises when a plaintiff fails to exercise due care, while assumption of the risk arises regardless of the care used and is based fundamentally on consent.
自担风险是美国侵权法中很重要的一个概念。自担风险的含义是“明知山有虎，偏向虎山行”。如果原告在知晓被告的行为有危险的情况下，自愿地担当风险，他就不能获得任何伤害赔偿。在这里，“知晓”和“自愿”是两个关键词。
自担风险有两种形式，一种是明示的，一种是暗示的。明示自担风险（express assumption of the risk）指原告在事故发生前，有口头或书面合约方式，明确表示愿意承担某种风险，比如合同中的免责条款（exculpatory clause），即订约人在合同中写明在某种情况下不对自己的过失负责。法院一般都会判这种免责条款有效，但当条款违反某种公共政策，或对某一方不公道时，法院就会判定它无效。另外，当合约双方讨价还价的力量悬殊太大时，免责条款也无效。
在某些情况下，原告并没有通过口头或书面形式明确同意承担风险，但他的行为却暗示出他愿意承担风险：这就是暗示自担风险（implied assumption of the risk）。要证明原告暗示承担风险，被告必须证明原告知晓并且自愿以他的行动承担风险。所谓“知晓”，首先是原告实际知道风险的存在。如果不能确定他是否实际知晓，法院可以根据一般人的知识推定原告是否知晓。比如，在放烟火的地方容易被烧伤，这就是一般带识，原告应该知晓。所谓“自愿”，当然是原告自己愿意，没有受人的强迫或引诱。
What Does “Assumption of the Risk” Mean?
“Assumption of the risk” generally arises when an individual voluntarily and knowingly assumes the risk of harm and/or injury stemming from a defendant’s negligence. If a person assumes the risk, that typically means he or she cannot obtain damages for the harm sustained as a result of the defendant’s acts (or failure to act), even if the defendant was reckless or negligent.
There are certain situations in which it can be said that a person has assumed the risk, and those situations fall under three wide-ranging categories:
(1) Express agreement
(2) Knowledge and implied acceptance of the risk
(3) Voluntary assumption of the risk
Even if an individual is involved in a situation that falls under the one of the above-mentioned categories, a skilled attorney may be able to demonstrate the individual was acting reasonably in light of the risks, particularly in certain cases.
1. Express Agreements to Assume the Risk
Certain parties might elect, prior to the occurrence of an injury or harm, to enter into written agreements that ultimately release the defendants from any duty of care owed toward the injured parties, as well as any liability for issues that may arise as a result of the defendants’ negligent or reckless conduct. This is commonly known as an “express agreement” to assume the risk, meaning the injured party will not seek to hold the defendant responsible for injuries sustained. Such agreements are typically enforceable, unless they are contrary to public policy.
2. Knowledge and Implied Acceptance of the Risk
If an individual is not aware of the risks associated with a particular job or other type of activity, he or she cannot be said to have “assumed the risk” in many instances. For example, if a person who due to inexperience, lack of information, or age cannot, or does not, appreciate the risks associated with a particular situation, that person will not be deemed to have consented to assuming the risks.
With respect to implied acceptance, in cases that do not involve express agreements, consent to assume the risks is implied based on an individual’s conduct under the circumstances. An example of this would be in the case of individuals who participate in sporting events. Those individuals will likely be deemed to have impliedly assumed the risks of injury as a foreseeable result of the sport in question.
3. Voluntary Assumption of the Risk
Injured parties are not barred from recovering damages under the “assumption of the risk” doctrine unless their decisions are made freely and voluntarily. The individual must demonstrate some level of consent in order to relieve the defendant of the duty to act reasonably.
