23.21.2 Assumption of the Risk.

• Jurisdiction: Arizona

23.21.2 Assumption of the Risk. The assumption of risk defense is based on the notion that, by taking the chance of injury from a known risk, the plaintiff has consented to relieve the defendant of its duty toward him.³⁹⁷ Common law has recognized the defense “in tort actions for nearly 200 years.”³⁹⁸ The elements are:

(1) a risk of harm to the plaintiff caused by a condition of the defendant’s property,

(2) plaintiff’s actual knowledge of the risk and appreciation of its magnitude, and

(3) plaintiff’s voluntary choice to accept the risk given the circumstances.³⁹⁹

Section 402A, comment n of the Restatement (Second) of Torts describes assumption of risk in the products liability context:

If the user or consumer discovers the defect and is aware of the danger, and nevertheless proceeds unreasonably to make use of the product and is injured by it, he is barred from recovery.⁴⁰⁰

Contrary to the Restatement, assumption of risk is a comparative defense in Arizona.⁴⁰¹ It is always a question of fact that must be left to the jury.⁴⁰² Upon the jury’s application of the defense, “the claimant’s action is not barred, but the full damages shall be reduced in proportion to the relative degree of the claimant’s fault which is a proximate cause of the injury.”⁴⁰³

To prove that a plaintiff “assumed the risk,” the defendant must first establish that the product is defective.⁴⁰⁴ Second, the defendant has to show that the plaintiff understood the danger associated with the product defect and then voluntarily decided to accept the risk.⁴⁰⁵ Assumption of risk is “fundamentally based on consent.”⁴⁰⁶ Accordingly, the elements work together to ensure the plaintiff did not merely act on “a failure to fully appreciate and comprehend the consequence.”⁴⁰⁷ The result, however, is a fairly “subjective test,”⁴⁰⁸ which may create difficulties for defendants attempting to assert the defense.

In Kavanaugh v. Southland Mower Co. , the plaintiff suffered a partial amputation of her foot at the age of five in a lawn mower accident. ⁴⁰⁹ Her nine-year-old brother operated the mower at the time of the incident.⁴¹⁰ A products liability action, alleging defective design, was brought on the girl’s behalf against the manufacturer and sellers of the lawn mower.⁴¹¹ Defendants asserted the assumption of risk defense.⁴¹² When discussing the defense, the court questioned “whether the users discovered the defect, became aware of the danger presented by such defect, and nevertheless proceeded...