Relying on allen's agreement to assume the risk of her activities with the personal trainer and her release and waiver of claims based on negligence related to that activity, defendant moved for a directed verdict at the close of allen's case. Assumption of risk is a defense asserted by defendants in cases where it is claimed that the activity that the plaintiff was engaging in was risky, such as skiing, skydiving, bungee jumping, or a whole list of sports such as basketball, football, hockey and lacrosse, as a few examples. In an action seeking damages for a personal injury sustained while playing a sport, determining which risks are inherent in that sport is a difficult task
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Some sports are so new or uncommon that their typical risks may not be evident.
Secondary assumption of risk is an affirmative defense that may be invoked when the plaintiff has unreasonably and voluntarily chosen to encounter a known and appreciated danger created by the defendant’s negligence.
Assumption of risk means that the plaintiff, in advance, has given the plaintiff's consent to relieve the defendant of an obligation of conduct toward the plaintiff, and to take the plaintiff's chances of injury from a known risk arising from what the defendant is to do or leave undone. If the jury finds no gross negligence, then the action is barred by express assumption of risk unless there are issues of fact with regard to contract formation.
