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13-21-111.7. Assumption of risk - consideration by trier of fact

Text

Assumption of a risk by a person shall be considered by the trier of fact in apportioning negligence pursuant to section 13-21-111. For the purposes of this section, a person assumes the risk of injury or damage if he voluntarily or unreasonably exposes himself to injury or damage with knowledge or appreciation of the danger and risk involved. In any trial to a jury in which the defense of assumption of risk is an issue for determination by the jury, the court shall instruct the jury on the elements as described in this section.

History

History.
Source: L. 86: Entire section added, p. 679, 3, effective July 1.

Annotations

ANNOTATION

Law reviews. For article, Legal Aspects of Health and Fitness Clubs: A Healthy and Dangerous Industry, see 15 Colo. Law. 1787.

This section satisfies the rational basis in fact standard of equal protection analysis since the statutory definition under this section is based on the long-standing legal principle that there are significant differences between plaintiffs and defendants such that different legal consequences may be attributed to their respective conduct solely on the basis of their status as either plaintiff or defendant in a negligence action. Harris v. The Ark, 810 P.2d 226 (Colo. 1991).

This section satisfies equal protection analysis under the rational basis standard of review since one of the purposes is to make clear that both the voluntary and the unreasonable exposure to a known danger are species of assumption of risk under the comparative negligence statutory scheme. Harris v. The Ark, 810 P.2d 226 (Colo. 1991).

By defining assumption of risk in disjunctive terms of voluntary or unreasonable conduct, this section includes within the definition a plaintiffs voluntary but not necessarily unreasonable, as well as a plaintiffs unreasonable, exposure to a known danger. Harris v. The Ark, 810 P.2d 226 (Colo. 1991); Carter v. Lovelace, 844 P.2d 1288 (Colo. App. 1992).

Assumption of risk requires knowledge of the danger and consent to it. Carter v. Lovelace, 844 P.2d 1288 (Colo. App. 1992); Scott v. City of Greeley, 931 P.2d 525 (Colo. App. 1996).

Attempt to pass vehicles involved negligence and assumption of some risks, but not the known risk that someone would turn immediately in front of him. To hold otherwise would be to hold that all drivers presume the risk of any accident when passing another automobile. Carter v. Lovelace, 844 P.2d 1288 (Colo. App. 1992).

This section defines the term assumption of risk in language that gives clear notice of the conduct encompassed within the term that is, the voluntary or unreasonable exposure to injury or damage with knowledge or appreciation of the danger and risk involved and provides meaningful guidance to courts and juries in resolving issues of liability and damages by directing them to factor the plaintiffs assumption of risk into the comparative negligence calculus. Harris v. The Ark, 810 P.2d 226 (Colo. 1991).

A passenger in an automobile driven by an intoxicated person may be negligent for having entered the automobile in the first place. Thus, an instruction on assumption of risk is proper when a plaintiff is injured while a passenger in an automobile driven by someone who the plaintiff has reason to know is intoxicated. Wark v. McClellan, 68 P.3d 574 (Colo. App. 2003).

No error in failing to instruct jury on assumption of risk. Howard v. Wood Bros. Homes, Inc., 835 P.2d 556 (Colo. App. 1992).