Ill. Pattern Jury Instr. (Civil) 13.00

INTRODUCTION

Assumption of risk is one of the traditional defenses in a tort action based on negligence

or willful and wanton misconduct. See W. Prosser & W. Keeton, The Law of Torts §68 (5th ed.

1984). In Illinois, it is also a damage -reducing factor in actions based on strict tort liability for

defective products. In this state, these two branches of the doctrine are separate and distinct.

Assumption of risk in strict product liability cases is governed by its own set of rules and the

applicable instructions may be found in the product liability series (IPI 400.00); see IPI B400.03.

Classification: Express and Implied

There are two main categories of assumption of risk: express and implied.

Express Assumption of Risk

Under express assumption of risk, plaintiff and defendant explicitly agree, in advance,

that defendant owes no legal duty to plaintiff and therefore, that plaintiff cannot recover

for injuries caused either by risks inherent in the situation or by dangers created by

defendant's negligence.

Duffy v. Midlothian Country Club, 135 Ill.App.3d 429, 433; 481 N.E.2d 1037, 1041; 90 Ill.Dec.

237, 241 (1st Dist.1985) (hereafter cited as “ Duffy II ”). This form of the defense is closely

related to consent in the area of intentional torts, which is based on the theory that the plaintiff

has agreed in advance to be exposed to the defendant's culpable conduct and to hold the

defendant harmless for any injury that might result from that conduct. It is commonly found in

written releases, waivers, or exculpatory clauses in lease agreements and other contracts between

the parties. See, e.g., Harris v. Walker, 119 Ill.2d 542, 519 N.E.2d 917, 116 Ill.Dec. 702 (1988)

(horseback rider).

Issues involving express assumption of the risk will usually be decided by the court as a

matter of law. In those cases in which jury issues are presented --e.g., whether the release was

procured by fraud or involuntarily, or under a mutual mistake of fact --the instructions to the jury

will involve narrow fact issues and must be specifically tailored to the particular case. Therefore,

this chapter does not include any instructions concerning express assumption of the risk.

Implied Assumption of Risk

Implied assumption of the risk is that which is unspoken but inferred from the plaintiff's

conduct. It may also be subdivided into two categories: primary and secondary.

Primary assumption of risk is where “the risk of harm is not created by the defendant but

is inherent in the activity which the plaintiff has agr eed to undertake. The plaintiff is regarded as

tacitly or impliedly agreeing to take his own chances such as where he accepts employment

knowing that he is expected to work with a dangerous horse.” Clark v. Rogers , 137 Ill.App.3d

591, 594; 484 N.E.2d 867, 869; 92 Ill.Dec. 136, 138 (4th Dist.1985). Accord: Duffy II , 135

Ill.App.3d at 433, 481 N.E.2d at 1041, 90 Ill.Dec. at 241. At one time the courts referred to these

as the “ordinary risks” of the employment. Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d

619, 626 (3d Dist.1972).

In this sense, primary assumption of risk is not really a defense to the defendant's

negligence. Instead, it acts to negate liability on the ground that the defendant has no legal duty

to protect the plaintiff from certain haz ards. Therefore, like express assumption of risk, this form

of the doctrine acts as a complete bar to recovery by the plaintiff. In Illinois, primary assumption

of risk is recognized only in situations in which (1) the plaintiff is the defendant's employee or

(2) there is some other contractual relationship between the parties under which the plaintiff's

duties involve exposure to an inherent hazard. Barrett v. Fritz , 42 Ill.2d 529, 533- 534, 248

N.E.2d 111, 115 (1969); O'Rourke v. Sproul , 241 Ill. 576, 89 N.E. 663 (1909); Conrad v.

Springfield Consol. Ry. Co., 240 Ill. 12, 88 N.E. 180 (1909); B. Shoninger Co. v. Mann, 219 Ill.

242, 76 N.E. 354 (1905); Hensley v. Hensley, 62 Ill.App.2d 252, 210 N.E.2d 568 (5th Dist.1965).

It applies only to “ordinary” risks not created by the defendant's negligence. See Burnett v. Caho,

7 Ill.App.3d 266, 275; 285 N.E.2d 619, 626 (3d Dist.1972). (For convenience, we will refer to

the defendant in these cases as the “employer.” This term is usually applicable in the contractual

relationship cases, as well as in the employer -employee cases, because the plaintiff has been

hired as an independent contractor to perform certain work for the defendant.)

Secondary assumption of risk refers to the situation where the plaintiff is aware of and

appreciates a danger that has been created by the defendant's negligence or other fault, but the

plaintiff nevertheless voluntarily proceeds to encounter it. Duffy II , supra. Functionally, it is

similar to contributory negligence; it is fault- based. Id.; see Kionka, Implied Assumption of Risk:

Does It Survive Comparative Fault?, 1982 S.I.U.L.J. 371.

Prior to the adoption of comparative negligence in Illinois, risks created by the

employer's negligence were referred to as “extraordinary risks.” Burnett v. Caho, 7 Ill.App.3d

266, 275; 285 N.E.2d 619, 626 (3d Dist.1972). There was some confusion in the case law as to

whether an employee or contracting party could assume such risks and therefore whether this

defense was available as to those risks. Compare Stone v. Guthrie , 14 Ill.App.2d 137, 148-150;

144 N.E.2d 165, 170 (3d Dist.1957), and Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d

619, 626 (3d Dist.1972), with Mack v. Davis , 76 Ill.App.2d 88, 98; 221 N.E.2d 121, 126 (2d

Dist.1966). As a practi cal matter, however, it made little difference, since the same conduct by

the plaintiff was also contributory negligence, which (like assumption of risk) was also a

complete bar to plaintiff's recovery.

After the adoption of comparative negligence in Alvis v. Ribar , 85 Ill.2d 1, 421 N.E.2d

886, 52 Ill.Dec. 23 (1981), it became important to distinguish clearly between primary and

secondary assumption of risk (or “ordinary” and “extraordinary” risks). Duffy II , supra. The

distinction is that primary assumption of risk--which excuses an employer from any duty to the

plaintiff with respect to certain risks --appears to remain a complete defense. Id. Secondary

assumption of risk, however, is merely another form of plaintiff's negligence. With the adoption

of comparative negligence, to the extent that secondary assumption of risk has any vitality, it

becomes merely another form of comparative (damage-reducing) fault. Id. Therefore, no separate

instructions are necessary if the defense asserted is that the plaintif f voluntarily encountered

defendant's negligently -created risk. The IPI instructions on contributory negligence, issues,

burden of proof, damages, and forms of verdict can either be adapted or used as is, depending on

whether the trial court rules that the term “assumption of risk” should be used or not. The

instructions in this chapter should not be used in such cases. The instructions in this chapter are

applicable only if there is a claim that the plaintiff assumed an inherent risk, not created by the

defendant's fault, in an employment or contractual undertaking.

Primary Assumption of Risk

Primary assumption of the risk is an affirmative defense. Perschall v. Raney, 137

Ill.App.3d 978, 985; 484 N.E.2d 1286, 1290; 92 Ill.Dec. 431, 435 (4th Dist.1985). The defendant

has the burden of proof on each of four elements: (1) that the danger was not created by the

defendant's negligence, but is normally incident to, or inherent in, the employment or contractual

activity; (2) that the plaintiff voluntarily encou ntered the danger; (3) that the plaintiff was fully

aware of, understood, and appreciated the danger; and (4) that the danger was the cause of the

plaintiff's injury. Stone v. Guthrie , 14 Ill.App.2d 137, 148- 150; 144 N.E.2d 165, 170 (3d

Dist.1957); Chaplin v. Geiser, 79 Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d

Dist.1979).

Inherent Danger. The law does not recognize the master's negligence as being an

ordinary and usual risk incident to the employment. Stone v. Guthrie , 14 Ill.App.2d 137, 148;

144 N.E.2d 165, 170 (3d Dist.1957). Nor does an employee assume the risk of injury arising

from the incompetence of a fellow servant. Burnett v. Caho, 7 Ill.App.3d 266, 275; 285 N.E.2d

619, 626 (3d Dist.1972).

Voluntary Exposure. The doctrine is available only against a plaintiff who “voluntarily

exposes himself to a ‘ specific, known risk.’ Thus the doctrine ... is ‘not a preclusion of recovery

against a plaintiff whose occupation inherently involves general risks of injury.’ ” Chaplin v.

Geiser, 79 Ill.App.3d 435, 398 N.E.2d 628, 631; 34 Ill.Dec. 805, 808 (2d Dist.1979), citing

Court v. Grzelinski , 72 Ill.2d 141, 379 N.E.2d 281, 19 Ill.Dec. 617 (1978). Thus, the risks of

falling after stepping on a dog's toy left lying on the floor was not a specific, known risk of a

housekeeper's job. Chaplin v. Geiser, supra. But the doctrine was applied to a housekeeper who

fell down a flight of stairs after tripping on a rug on the landing. In that case, the court said that

the plaintiff knew of the danger from the rug and the risk involved in the use of the landing and

stairs were normally incident to her employment. Coselman v. Schleifer, 97 Ill.App.2d 123, 239

N.E.2d 687 (2d Dist.1968).

Ordinarily, an employee who enters into an employment situation with k nowledge of an

inherent danger is presumed to have encountered that hazard voluntarily. Chicago & E.I.R. Co. v.

Heerey, 203 Ill. 492, 495; 68 N.E. 74, 75 (1903). Mere economic duress does not vitiate the

voluntariness. However, the voluntary character of the plaintiff's actions may be negated by a

showing that the plaintiff “was induced by his employer to believe that a change would be

made.” Camp Point Mfg. Co. v. Ballou, 71 Ill. 417, 420 (1874).

Subjective Knowledge and Appreciation of Danger. The plain tiff must not only have

actual knowledge of the danger, he must also appreciate the danger and the risks connected with

it. Fox v. Beall , 314 Ill.App. 144, 147; 41 N.E.2d 126, 128 (2d Dist.1942). The test is a

subjective one; not what plaintiff should have known, but what he in fact did know and

appreciate. Russo v. The Range, Inc., 76 Ill.App.3d 236, 238- 239; 395 N.E.2d 10, 13- 14; 32

Ill.Dec. 63, 66-67 (1st Dist.1979); Maytnier v. Rush, 80 Ill.App.2d 336, 349; 225 N.E.2d 83, 90

(1st Dist.1967). However, a plaintiff cannot elude application of the doctrine with “protestations

of ignorance in the face of obvious danger.” Russo v. The Range, Inc., 76 Ill.App.3d 236, 238 -

239; 395 N.E.2d 10, 13-14; 32 Ill.Dec. 63, 66-67 (1st Dist.1979). “A person of sufficient age and

experience is chargeable with knowledge of the ordinary risks and hazards of his employment,

and will be presumed to have notice of and to have assumed such risks which, to a person of his

age and experience, are, or ought to be, obvious.” Mack v. D avis, 76 Ill.App.2d 88, 98; 221

N.E.2d 121, 126 (2d Dist.1966). Ordinarily, this is a fact issue for the jury unless the facts are so

clear that reasonable persons could not differ as to whether the plaintiff appreciated the danger.

Fox v. Beall , 314 Ill.App. 144, 147;, 41 N.E.2d 126, 128 (2d Dist.1942); Hinrichs v. Gummow ,

41 Ill.App.2d 428, 434-435; 190 N.E.2d 610, 612-613 (2d Dist.1963).

Causation. The defense is only applicable if the plaintiff's injury was caused by the

danger the risk of which the plaintiff is claimed to have assumed. Therefore, it is important that

the danger be clearly identified, since there may be other risks as to which the defense would not

apply.

Violation of Statute. Assumption of risk cannot be used as a defense to a limited group of

statutes that are intended to protect a certain class of persons from dangers against which they are

deemed less able to protect themselves. In such cases, it is the policy of the law to impose upon

the defendant a nondelegable duty to comply with the statute.

It is often proper to instruct the jury that assumption of the risk is not a defense to such

claims, even though the defendant did not make assumption of the risk an issue in the case.

Gilmore v. Toledo, P. & W. R. Co., 64 Ill.App.2d 218, 212 N.E.2d 117, 120 (3d Dist.1965), aff'd,

36 Ill.2d 510, 224 N.E.2d 228 (1967) (F.E.L.A.); Vandaveer v. Norfolk & W. Ry. Co., 78

Ill.App.2d 186, 222 N.E.2d 897 (5th Dist.1966) (same). Such an instruction should be given

“when the issue of assumption of risk is expressly or implicitly before the jury, even though not

explicitly raised at trial . . . . The issue of assumption of the risk is before the jury whenever

there is any evidence from which it could be inferred that the employee had assumed the ris k.”

Hamrock v. Consolidated Rail Corp., 151 Ill.App.3d 55, 501 N.E.2d 1274, 1279; 103 Ill.Dec.

736, 741 (1st Dist.1986).

For an example of such instructions, see IPI 160.09 (FELA).

Instructions on Primary Assumption of Risk

In order for primary assumption of the risk to become an issue, the defendant must assert

it as an affirmative defense. The risk must be an inherent danger associated with the employment

or activity which is the subject of the contract between the parties, and it cannot be a risk cr eated

by the defendant's negligence. Thus, when the plaintiff claims negligence in that the defendant

(employer) negligently failed to protect him against an inherent risk, not created by the

defendant's negligence, the defendant may invoke the assumption of risk defense. If, after

presentation of the evidence, fact issues remain concerning this defense, then IPI 13.01 or 13.02

may be appropriate.

On the other hand, when the plaintiff alleges that the defendant (whether an employer or not) is

negligent with respect to a risk created by the defendant's negligence, the proper defense is

contributory/comparative fault. In that case, the instructions in this chapter do not apply.