In order to establish the defense of assumption of risk, the defendant must show that the plaintiff: (1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.
Employee was injured when she fell on some ice at owners' building while making a delivery in the course of her employment. Employee and her workers' compensation insurer filed negligence claims against owners for failing to make the walkway safe. The trial court granted owners' motion for judgment on grounds that employee knowingly and voluntarily assumed the risk of falling on a walkway covered with ice and snow. The intermediate appellate court reversed on grounds that employee's belief that she would have suffered negative repercussions at her job had she failed to make the delivery presented a factual dispute as to whether her actions were voluntary. The court reversed the intermediate appellate court's judgment and remanded to that court with instructions to affirm the judgment of the circuit court granting owners' motion for judgment.
Was summary judgment or the direction of a verdict proper where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed herself to a known danger?
Assumption of the risk is an affirmative defense, which rests upon the plaintiff's consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. Unlike contributory negligence, the assumption of risk defense exists independently of the conduct of another person, whether the defendant or a third party. Therefore, the existence of a defendant's duty is not an issue because that speaks to the defendant's negligence, which is not required to establish assumption of risk. Here, it functions as a complete bar to recovery because of the previous abandonment of the right to complain if an accident occurs. The court held that there was no evidence that employee's act was not volitional and no evidence from which employee's concern for her job if the delivery were not made could have been inferred.