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Is assumption of risk a products liability defense?

"Assumption of the risk" is a legal doctrine under which a person who engages in an activity or uses a product can take on the risk of harm to himself that such activity or product may bring. It is an affirmative defense at trial, meaning that in a lawsuit such as a products liability action the defendant must raise the defense in its pleadings or the defense will not be available.

Assumption of the risk can take two forms: express, or implied. Express assumption of the risk typically takes the form of a waiver that a person reads and signs before engaging in an activity or using an item, which will purport to hold the defendant harmless from any liability to the plaintiff if the plaintiff suffers injury to his person or property. Implied assumption of the risk can take the form of the defendant warning the plaintiff in advance of the dangers involved in such activity or product usage, and being so warned the plaintiff proceeds anyway.

With regard to product liability lawsuits, Ohio law recognizes that in general the plaintiff’s assumption of the risk – express or implied – can be a bar to recovery if the defendant successfully raises it as an affirmative defense. Note, however, that assumption of the risk is frequently used in tandem with a second affirmative defense, that of "contributory fault". Particularly with regard to a product liability lawsuit against a product supplier that alleges negligence on the part of the supplier, if that supplier raises both implied (note: not actual) assumption of the risk and contributory fault then it is possible that negligence liability may be apportioned between the plaintiff and the defendant. In this situation, the plaintiff would still be subject to the requirement under Ohio law that he be less than 50% at fault, otherwise his contributory fault would serve as a complete bar to recovery.

The Ohio statutes governing the use of assumption of the risk as a product liability defense can be complicated to interpret. If you have been injured as a result of the use of a defective product, you and your personal injury attorney will need to take into account the possibility that the defendant will attempt to raise either or both of the assumption of the risk and contributory fault defenses, and plan your negotiation or litigation strategy accordingly.

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